No. 87

VICTORIA

Third Annual Report

of the

COMMISSIONER FOR EQUAL OPPORTUNITY

for the

Year ended 30 June 1980

Ordered by the Legislative Assembly to be printed

MELBOURNE F D ATK!NSON GOVERNMENT PRINTER

1980-81

31943181 ~PL

VICTORIA

COMMISSIONER FOR EQUAL OPPORTUNITY

TEL.EPHONE; GOZ 3222

REF':

The Honourable R. J. Hamer, ED, MP Premier of Victoria Department of the Premier 1 Treasury Place MELBOURNE 3002

Dear Mr Premier,

10TH FLOOR 356 COLLINS STREET

MELBOURNE, 3000

I enclose my Third Annual Report covering the period from 1st July, 1979 to 30th June, 1980.

Yours sincerely

Fay Marles COMMISSIONER FOR EQUAL OPPORTUNITY

TABLE OF CONTENTS Page

1 . Introduction 1 2. General Characteristics of Matters

Referred to the Commissioner for Equal Opportunity 2

3. Employment 6 4. Significant Issues in the Employment Area 10 5. Complaints Concerning Education 16 6. The Provision of Goods and Services 20 7. Accommodation 23 8. Conci I iation 24 9. Other Activities 27

10. Problems of Legislation 29 11. Contact with Other Organisations 32 12. Conclusion 34

Illustrations are reproduced from "Equal Opportunity Forum" and Equal Oppor­tunity and You" for the purpose of increasing the reports' journal educational impact.

APPENDICES 1. Equal Opportunity Bulletins, Nos. 1-9 2. Speeches, Seminars, Radio and Television Appearances. 3. Committee Membership 4. Published Articles and Other Projects 5. The Equal Opportunity Act and the Family 6. Resolving Complaints of Discrimination Through Conciliation 7. Research Project on Women and the Workforce 8. Relevant Extracts from Second Annual Report

35 57 58 58 59 61 67 68

CHAPTER 1 - INTRODUCTION In accordance with Section 39 of the Equal Opportunity Act 1977, it is my duty as Commissioner for Equal Opportunity to present an Annual Report at the conclusion of each year ending on 30th June on my administration of the Act during that year. This relates to my responsibility to attempt to conciliate all complaints of discrim­ination referred to me by the Registrar of the Equal Opportunity Board under Section 39 of the Act, and all matters referred for investigation and conciliation by the Equal Opportunity Board under Section 35. In the time since the Equal Opportunity Act came into force in April 1978, a total of 404 cases have been referred to me under these Sections. Because of this considerable volume of work, it is now possible to pinpoint with some accuracy those problems that are emerging as particularly significant and those that appear to have been reduced or even eliminated as the result of the legislation. In addition, therefore, to providing a factual record of the administration of the Act during the current period, this Third Annual Report will endeavour to evaluate our progress and identify those areas where the need for education, research and leg­islative amendment continue to be apparent. Finally, the heavy emphasis that will be placed on comparative statistics will be for the purpose of pinpointing as accurately as possible any trends or significant changes that may have become evident.

1

CHAPTER 2- GENERAL CHARACTERISTICS OF MATTERS REFERRED TO THE COMMISSIONER FOR EQUAL OPPORTUNITY

A total of 164 matters were referred to the Commissioner for Equal Opportunity for the year ending 30th June, 1980. Of these 11 were instances of possible discrimination which the Equal Opportunity Board referred for investigation under Section 35(1) of the Equal Opportunity Act, and the remainder constituted individual or joint complaints by private persons referred by the Registrar of the Equal Op­portunity Board under Section 39(4). Unless otherwise stated, all matters will be treated for statistical purposes as complaints in the same manner as in my previous reports on the basis that the issues involved and the way they are treated has been virtually identical for both Board and individual referrals. In conformity with past practice also, there will be no identification of individual complainants or respondents except where multiple cases relating to a particular organisation appear to suggest a generalised problem that needs examination. Areas of Complaint This year complaints in employment have dominated the work of the office even more than in the past with a reduction of complaints in other areas.

TABLE 1: COMPLAINTS OF DISCRIMINATION ON THE BASIS OF SEX AND MARITAL STATUS BETWEEN 1ST JULY, 1979 AND 30TH JUNE, 1980

Area of On Grounds On Grounds of Total % Discrimination of Sex Marital Status

M F M F Employment 21 92 2 4 119 72 Education 1 8 0 0 9 6

Goods and Services 5 18 0 9 32 20 Accommodation 0 0 0 4 4 2

27 118 2 17 164 100

While the actual number of complaints in employment has increased this year by ten, numbers have declined in both education and the provision of goods and services. The level of accommodation referrals has remained constant. Sex Ratio of Complaints Equally constant this year has been the proportion of men and women using the legislation. Although it is interesting in this regard that the second half of the year accounted for 70% of the complaints from men which appear, at present, to be increasing.

TABLE 2: A COMPARISON OF OVERALL PERCENTAGES OF COMPLAINTS MADE IN DIFFERENT AREAS DURING THE PERIODS COVERED BY THE FIRST, SECOND AND THIRD ANNUAL REPORTS

1977/78 1978/79 1979/80 M% F% Total% M% F% Total% M% F% Total%

Employment 24 38 62 11 46 57 14 58 72 Education 2 2 4 1 12 13 1 5 6 Goods and Services 5 22 27 6 21 27 3 17 20 Accommodation 2 5 7 3 0 2 2

TOTAL 33 67 100 18 82 100 18 82 100

2

Response to Publicity In 1979, publicity was suggested as the probable reason for the increase in com­plaints at certain times of the year and the current pattern appears to suggest a similar response. In this regard, the reduced availability of staff for regular country visits also appears to have had its effect with a sharp reduction in the volume of country complaints.

TABLE 3: COMPLAINTS OF DISCRIMINATION IN AREAS COVERED BY THE EQUAL OPPORTUNITY ACT SHOWN ON A MONTHLY BASIS FROM JULY 1979 TO JUNE 1980 INCLUSIVE

20

15 n

Jl I

10

5

Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun

July: This corresponds to a publicity campaign undertaken by this office. November: This corresponds to the period when both teachers and pupils make their choices for the coming academic year. There tends to be a higher incidence of complaints on employment restrictions and the availability of schools or facilities. December-January: This corresponds to the usual trough over the December­January holiday period. April-June: This corresponds with the release and distribution of the annual report.

Complaints on the Basis of Marital Status This year the total number of complaints on the basis of marital status has declined from 35 to 19 and in my view, almost certainly represents a significant change in community attitudes towards the rights of married women in the workforce.

3

TABLE 4: COMPARISON OF VOLUME AND TYPE OF COMPLAINTS ON THE BASIS OF MARITAL STATUS FOR THE YEARS ENDING 30TH JUNE, 1979 AND 30TH JUNE, 1980

Area of Complaint Employment Education Goods and Services Accommodation

TOTAL

1979 Male Female

2 16

1

3

2 9

Total 18 2

10

Male 2 0 0 0

2

1980 Female

4 0 9 4

17

Total 6 0 9 4

As this table shows, a drop has occurred in the incidence of complaints by women that their marital status has adversely affected their employment, although it is interesting that in the goods and services areas there has been little change. Social Characteristics of Complaints Throughout the period of operation an attempt has been made to identify the social characteristics of complainants and as the following table shows, there have only been minor changes in this area.

TABLE 5: COMPARISON BETWEEN THE FIRST, SECOND AND THIRD ANNUAL REPORTS OF PERCENTAGES OF COMPLAINTS FROM DIFFERENT OCCUPATIONS AND DIFFERENT SOCIAL GROUPS

1977178 1978/79 1979/80 Occupations o;o 0/o % Professional 12 31 28 Technical 9 5 12 Skilled Trade 3 6 10 Clerical 42 25 28 Sales 13 13 6 Personal Services 15 4 10 Semi-skilled Manual 3 6 } 6 Unskilled 3 10

Residence 0/o 0/o 0/o Inner Metropolitan 15 19 14 Southern and Eastern Suburbs 32 26 50 Western and Northern Suburbs 11 14 11 Outer Suburbs 11 17 13

31 24 12

Non-English Speaking Origin 2 7 11

For legislation with an implicit commitment to an outreach program, this picture suggests the failure as yet to attain these objectives. Indeed, some ground appears to have been lost in this regard with an increasing representation of high status occupations and the reduction in numbers from country areas and northern and western suburbs. As some counter-balance to this there has been an increase in the complaints from migrants, but even here the overall numbers are so small that there has been in­sufficient to provide any real evidence of reaching this group as such.

4

SUMMARY 1. There has been an increase in the number of employment cases. 2. There has been a decrease in those relating to education and the provision

of goods and services. 3. The proportion of complaints from men and women has remained constant. 4. There has been a decrease in complaints from women concerning marital status

in employment. 5. Publicity appears to have influenced the level of complaints. 6. Complaints continue to come predominantly from a particular socio-economic

group. 7. There has been a minor increase in the number of complaints from migrants. 8. There has been a significant decrease in the number of complaints from country

areas.

5

CHAPTER 3 - EMPLOYMENT

General Characteristics There has been an increase in the total number of complaints concerning the workplace in the current year, and also a significant change in the type of problems they reflect. While the incidence of complaints concerning treatment within the work situation has increased from 16% to 40% of the total during the current year, the number of complaints made concerning barriers to obtaining jobs has decreased (last year 82 complaints concerned applications for employment, while only 74 such com­plaints have been made this year). Finally, the absence of complaints concerning contract workers, partnerships and qualifying bodies has continued although there has been a marked increase in the number of complaints made against employment agencies. TABLE 6: COMPARISON OF BASIS OF COMPLAINTS IN EMPLOYMENT

FOR THE YEARS ENDING 30TH JUNE, 1979 AND 30TH JUNE, 1980

1979 1980 Male Female Total Male Female Total

Employment Applications Not Considered or 15 56 71 13 48 61 Treated Less Favourably

Terms on which 1 11 12 5 8 13

Employment Offered Promotion 0 0 0 0 5 5 Complainant Subjected 0 3 3 3 12 15

to Detriment Complainant Denied

2 6 8 4 5 Benefit Dismissal 0 3 3 1 16 17 Retirement 2 2 1 4 5

18 81 99 24 97 121

6

Types of Complaints 1. Applications for Employment

Although there have been fewer complaints concerning applications for em­ployment this year, the failure to obtain a job has remained the greatest single problem in this area (see Table 6). The ratio of male to female complaints also warrants comment because while the number of complaints from women fell by 16%, those from men actually rose by 12%. Alleged discrimination in se­lection practices has also undergone change. Initially, most complaints con­cerned an employer's refusal to consider members of one sex, but in the current period more than 30% of complaints in this area have alleged that different selection criteria were applied to members of each sex.

2. Terms on Which Employment is Offered The type of complaints concerning terms of employment have remained similar to last year and cases have related to duties traditionally considered appropriate to men or women and also in the case of women, to rates of pay. There have also been cases in which part-time work has been made available only to women.

3. Promotion Although there were only five complaints concerning promotion, the complete absence of this type of case in the previous year suggests they have some significance. All complaints were made from women who considered that their situation bore some relationship to the small proportion of women in positions of higher authority in the workplace overall.

4. Experience of Detriment Individual complaints have not always been confined to one category within the terms of the Equal Opportunity Act as there have frequently been several ways in which discrimination has been considered to have occurred. The ex­perience of detriment is used, therefore, where a complainant's primary griev­ance has related to suffering some form of harassment, victimisation or particularly harsh or unfair judgements about performance on account of their sex. The increase in complaints in this area has been significant and over 80% of them have been received from women. They have all related to one of three general problems. Firstly, sexual harassment has continued to pose problems for women; secondly, there have been instances of women considering that they have been subjected to pressure following knowledge of their being preg­nant; and finally, there have been complaints from both men and women that they have been the target of resentment because of their attempts to enter occupations or positions that have traditionally been the prerogative of the other sex. While some of these complaints have not been entertained because they were considered to be lacking in substance or outside the jurisdiction of the Equal Opportunity Act, they have for the most part been amongst the more difficult and complex problems to deal with during the period.

5. Denial of Benefit Fewer cases have involved denial of benefits in the current year. Four com­plaints came from women concerning opportunities for training or experience which were denied them because it was seen as more appropriate to prepare men for executive responsibility. The one man who complained did so because he was denied transport after hours in circumstances in which it was given to women.

7

6. Dismissal Since the Equal Opportunity Act came into force there has been a total of 20 complaints of dismissal. During the first eighteen months of the legislation's operation there were only five complaints of this nature. However, in the last eight months of the current period, there has been an additional fifteen. One complaint on this ground was made by a man and this appeared to be outside the jurisdiction of the Equal Opportunity Act. Of the sixteen complaints made by women, ten were found to be principally related to other causes and no conciliation was attempted, while acceptable solutions were found in two others and negotiations are in progress in the remaining four.

Characteristics of Respondents TABLE 7: A COMPARISON OF THE NUMBER OF COMPLAINTS FROM

PUBLIC AND PRIVATE ORGANISATIONS FOR THE YEARS ENDING 30TH JUNE, 1979 AND 30TH JUNE, 1980

1979 1980 Male Female Total Male Female Total

Public Service 6 24 30 6 16 22 Statutory Organisations 1 9 10 7 20 27 Private Organisations 12 58 70 10 60 70

TOTAL 19 91 110 23 96 119

A comparison of the statistics for 1979/80 relating to respondents show a re­markably constant pattern of complaints in the private sector contrasting with a wide variation within the Public Service and statutory organisations. The proportion of men and women making complaints in the private sector suggests that women could be experiencing problems more frequently in small organisations. TABLE 8: SIZE AND AUSPICE OF EMPLOYING BODIES INVOLVED IN

COMPLAINTS FOR THE YEAR ENDING 30TH JUNE, 1980 Males Females Total

Victorian Public Service 6 16 22 Victorian Statutory Organisations 7 20 27 Multi-National Organisations 1 13 14 National Companies 4 12 16 Multi-Unit Victorian Organisations 2 11 13 Single Unit Victorian Organisations 3 24 27 The greatest contrast between this year and last year has been reflected in the increase of complaints from statutory organisations. Hospitals have been included under this category and they have accounted for 30% of the current total. The only significant reduction in the number of employment complaints has con­cerned those from women within the Public Service, and here a drop of 35% con­trasts sharply with the rise that has occurred elsewhere. SUMMARY

1. There has been an increase in the number of cases concerning employment overall.

2. There have been fewer complaints relating to access to employment, but more involving the workplace itself.

3. Rather than the previous blanket refusal to consider one sex, cases this year have more often involved different selection criteria.

4. This year, for the first time there have been complaints concerning promotion, all made by women.

8

5. Complaints alleging detriment in employment are increasing and are largely made by women. These relate to: (a) sexual harassment (b) pregnancy (c) entry into non-traditional occupations.

6. Complaints suggest that training for executive responsibility is frequently con­sidered more appropriate for men.

7. There has been a major increase in the number of complaints concerning dismissal.

8. Complaints suggest that there could be particular problems for women in small organisations.

9. There has been an increase in complaints concerning statutory organisations, especially hospitals.

10. The number of complaints from women within the Public Service has decreased.

9

CHAPTER 4 - SIGNIFICANT ISSUES IN THE EMPLOYMENT AREA Although the current period has revealed progress in some areas of employment, it has also emphasised the extent and difficulty of problems in others. Indications of Progress lt is difficult to estimate the significance of the increase in the number of complaints that have been received this year because the area is so sensitive to the effects of publicity. However, this overall increase does serve to emphasise those cate­gories where downturns have occurred and of these, two are especially noteworthy.

1. Increased Entry Into Non-traditional Employment Areas There appears to have been a reduction to the barriers preventing applicants entering non-traditional employment areas. Complaints relating to one sex being treated less favourably than the other in applying for jobs has dropped by 15% both for men and women. This is particularly encouraging in view of its impli­cations for the achievement of equal opportunity and the fact that this was the area where discrimination was most evident when the legislation first came into force, and where in consequence, much of the educational thrust of the Equal Opportunity Board was directed. In addition to complaints there have also been informal indications of change in this regard during the current period. Many employers, for instance, have discussed their changing staffing patterns and the outcomes of these. Both boys and girls have expressed increasing interest in non-traditional careers for their sex and there have, in addition, been a number of inquiries from careers teachers. Encouraging also has been evidence of a growing awareness amongst the public of the undesirable implications of advertisements that contravene the Equal Opportunity Act.

From a poster by Michael Hayr.es. Year 10. Marist Brothers. Preston

10

Finally, however, while there is undoubtedly reason for optimism as a result of these statistics, it would be wrong to ignore the general picture of the dis­proportionately small number of girls entering apprenticeships and the very poor representation of women at higher executive levels in most areas of business. From time to time too, unfortunately, there have been indications that employers are continuing to discriminate without giving evidence of contravening the Equal Opportunity Act, and that the reduction in complaints could, in part, be due to a growing sophistication regarding the way in which traditional discriminatory practices may be continued within the framework of the legislation.

2. Reduction of Complaints in the Victorian Public Service Fewer complaints from women account for the reduction that has been recorded in the number of complaints from the Victorian Public Service this year. This almost certainly reflects efforts that have been made to eliminate discrimination. During the past two years an Inter-departmental Committee has been active in drawing matters to the attention of departmental heads, and also encouraging individual departments to promote equal opportunity. Through this members of the Service have become increasingly aware of the machinery of the leg­islation in a setting where it is relatively acceptable to use it. While I expressed the view in my last Annual Report that this awareness almost certainly accounted for the disproportionately large number of complaints during that period, it appears now to have moved a step further towards altering those practices that gave rise to complaints.

Continuing Problems for Employees Within Their Work Situation The proportion of complaints of discriminatory practices within the workplace has risen from 28% last year to 49% this year, and almost all have come from women. Dismissal or forced resignation due to alleged discrimination has been the most important single group in this category. 1. Dismissals and Forced Resignation

In general, conciliation has proved difficult in these situations and there have been two particular problems that appear to be contributing to the increased incidence of such complaints. Because lawful dismissal does not normally require that employers should pro­vide reasons for terminating an employees services, women in particular have turned to the Equal Opportunity Act in an attempt to clear their name and improve their future employment prospects. In all cases to date it has been possible to obtain a stated reason for dismissal (and in some instances it has been nec­essary to explain to the complainant shortcomings of which he or she was previously unaware). Sometimes, too, confusion over dismissal has been compounded by the pro­vision of a good reference by an employer in an attempt to minimise the con­sequences of the termination of the employee's services. The unpleasantness associated with a frank explanation of a complainant's unsuitability for continued employment has certainly been one factor in refusing to supply information, while another has been the possibility of providing the dismissed employee with a basis for taking further action. Indeed, without a change in the current legislation relating to lawful dismissal, it seems likely that this type of complaint could continue and, in the event of publicity, even increase.

2. Behaviour Viewed as Disruptive in a Woman One of the most common claims by women who have been dismissed is that their behaviour would have been more acceptable in a man in similar circum-

11

stances. Actions interpreted as disruptive, aggressive and unco-operative by their superiors have, they claimed, been identical with those seen as assertive, positive or indicating leadership potential in men in the same situations. In essence, this claim has related to a view that they have been victimised because of their superior's belief in the subservient role of women and a refusal to accept behaviour challenging this stereotype. Such complaints have usually been sup­ported by general statements attributed to their superiors indicating a particular view of women's capacities and appropriate functions. Conciliated agreements in cases of this kind have been particularly difficult to achieve because of the implications for the employer in reversing a decision or compensating the complainant. Even the writing of a favourable reference could involve some admission of fault if the stated reason for termination had been for work performance. In view of this it is not surprising that where there appears to have been a ques­tion of treating a woman less favourably because of resentment of behaviour that would have been considered acceptable to a member of the other sex, a formal judgement on the question of discrimination has become virtually es­sential tor any change. Consequently, three of the complaints received in this category have, at the time of going to press, been referred to the Equal Op­portunity Board. When these have been heard it is anticipated that the formal judgements of the Equal Opportunity Board on these issues will facilitate con­ciliation in future individual cases. In individual cases conciliation will become easier.

3. Problems of Employment Agencies Although comparatively few formal complaints have been received about the selection procedures of employment agencies, those conciliated in the current period have suggested that employers are continuing to apply pressure to obtain candidates of a particular sex. One agency, for instance, estimated that 70% of requests for candidates were sex specific; another agency was using protective industrial legislation in an inappropriate context in order to screen out applicants of one sex; a third agency complained of unfair competition where bodies were able to operate outside the jurisdiction of the Equal Opportunity Act. Taken together, these comments suggested the possibility of widespread practices that were not being reached by the enforcement of the legislation, and I endeavoured, therefore, to provide some remedy through publicising the issues. In this respect I obtained co-operation both from agencies who could be the subject of complaint, and from organisations representing employers. As a re­sult, it was possible to distribute 15,000 copies of a Bulletin on the subject (Appendix 1) and obtain both television and radio coverage. There have been no further complaints about employment agencies since this publicity.

4. Retirement Age Complaints from women concerning the requirement that they retire earlier than men in similar circumstances have continued to be made this year. The main reason tor this appears to have been the complexity of the issue in relation to superannuation provisions and the knowledge by employers that the latter is exempted under the legislation. In order to reduce confusion and eliminate further complaints I, therefore, issued a Bulletin which was widely distributed by various employer organisations (Appendix 1 ). Following this, several employers have made enquiries about measures needed to comply with the law and no further complaints have been received.

12

5. Limitations on Women Lifting Weights Above Sixteen Kilos During the current period problems have continued to arise in connection with the limitations placed by Section 132 of the Labour and Industry Act on women lifting above sixteen kilos.* This issue was discussed in detail in my last Annual Report (Appendix 8 re­produces the appropriate passage), and during this year the problems have become more acute. There is evidence, too, to suggest that the reason for this has been the growing awareness of the way in which this legislation can be invoked to avoid the provisions of the Equal Opportunity Act.

The Ambulance Service, the Victorian Police Force and the Country Fire Au­thority have all viewed the weightlifting provision in the Labour and Industry Act as relevant to the areas in which they can employ women, and this has had the effect of severely curtailing the career prospects of women in these services. In addition, there are instances in private industry of the provision being spe­cifically invoked to exclude women from consideration for positions in which heavy lifting could, at best, be an incidental requirement of the job. In this re­spect, one employment agency indicated that it is well known that the provision can offer a loophole to an employer who is not prepared to alter a traditional policy towards the employment of women. Because of these factors it appears a matter of urgency for the effective admin­istration of the Equal Opportunity Act to amend the relevant legislation so that protection against excessive requirements for heavy lifting be based on the ability of the individual to perform the task rather than on restrictions on the basis of sex.

6. Sexual Harassment The incidence of complaints of sexual harassment this year has been similar to the previous period. There have, however, been indications that complaints fail to reflect the extent of this problem within the workforce. Following the publicity concerning remarks about sexual harassment in my last Annual Report, I received a number of inquiries which were indicative of prac­tices of a widespread nature. This has subsequently been confirmed in dis­cussions I have had with a wide range of women in responsible positions in employment.

"Section 132- Labour and Industry Act 132. No person shall cause or permit any male under the age of eighteen years or any female engaged

in any trade to lift or carry by hand a greater weight than-( a) if a male-

(i) under sixteen years of age, 13.5 kilograms (ii) not less than sixteen but under eighteen years of age, 18 kilograms

(b) if a temale-(i) under sixteen years of age, 9 kilograms (ii) not less than sixteen but under eighteen years of age, 11.25 kilograms (iii) not less than eighteen years of age, 16 kilograms

13

Unfortunately, the nature of the abuse makes those who could complain es­pecially reluctant to come forward. The difficulty of proof, the possible legal consequences of accusations, the risk to employment, and the extreme un­pleasantness of any proceedings all tend to result in women either relinquishing their job or enduring the situation. In an endeavour to make the problem more visible to employers and thereby reduce its incidence, I have circulated a general Bulletin describing the issues and their relevance to the Equal Opportunity Act (Appendix 1).

SUMMARY Indications of Progress During the Period 1. A reduction in the number of complaints relating to not being considered for

employment suggests some breaking down of the barriers to employment in non-traditional areas for either sex.

2. A reducation in the number of complaints from the Victorian Public Service suggests the effectiveness of certain educational measures in that area.

Continuing Problems During the Period 1. A substantial rise in complaints from women of discrimination concerning dis­

missals and forced resignations. Two particular issues recurring in these are refusal to give a reason for the dismissal and the legislation being used to elicit this. Also, the claim that the behaviour leading to the termination would have been more acceptable in a man than a woman.

2. Complaints concerning employment agencies suggest a continuing squeeze by employers to obtain applicants of one sex. Measures taken to counteract this.

3. Continuing problems relating to differences in retirement age resulting from confusion concerning the exemption of superannuation from the Equal Op­portunity Act. Measures taken to clarify this situation.

14

4. Problems resulting from the limitations placed on women lifting heavy weights under Section 132 of the Labour and Industry Act suggesting the urgent need to base any protection against excessive demands for lifting on the ability of the individual to perform a task rather than on a person's sex.

5. Continuing complaints concerning sexual harassment, and indications that these do not reflect the size of the problem. Measures taken to make possible abuses more visible.

15

CHAPTER 5- COMPLAINTS CONCERNING EDUCATION There have been fewer complaints of discrimination concerning education in the current period than for the previous year. TABLE 9: COMPLAINTS CONCERNING THE PROVISION OF EDUCATION

MADE UNDER THE EQUAL OPPORTUNITY ACT 1977, BETWEEN 1ST JULY, 1979 AND 30TH JUNE, 1980

Type of Complaint Less Favourable Provision

of Technical Education Refusal of Application into

Course Disqualification for

Scholarship Girls Interests Not Being

Adequately Represented

1979 Male Female

0

0

2

0

2

19

3

0

3

1980 Male Female

0 5

0

0 1

0 2

1 8

The extent of this difference, however, is more apparent than real as groups of parents are represented amongst the five complaints in connection with technical education made this year, while in the previous year nineteen parents made in­dividual complaints about one issue. The only complaint concerned with the refusal to grant access to an educational course related to hairdressing and on investigation was not considered to be a matter of sex discrimination. Similarly, the complaint made concerning the refusal to consider a girl for a schol­arship was in connection with the Dafydd Lewis Trust which, as a trust created under the terms of a will, was outside the jurisdiction of the Equal Opportunity Act. In effect, therefore, only two matters of substance were complained of during the current period.

The Offering of Technical Education to Girls All five complaints concerning the failure of the Education Department to offer tech­nical education to girls were related to one technical school which provided only partial provision for girls in a country area where no alternative technical education was available.

-~ CAKE. DE.<..OAATING

~CHOOI.-

16

~ { \

This situation appeared to contravene the legislation both in respect to the education authority not offering education to both sexes on equal terms, and also with regard to the school itself in view of its substantial entry of girls overall and the doubts this raised as to whether it could be exempted on the grounds of being a school mainly for one sex. While the general arguments in support of offering technical education to both sexes were outlined in my Second Annual Report (Appendix 8), some concern must still exist on this issue. In the instance complained of this year, the matter was resolved by including the school concerned amongst those to be converted to full co-education in 1981. Such a solution however, would be more difficult if there were complaints about several technical schools in one year and could conceivably affect the long term program instituted by the Education Department for converting all technical schools to co­education. For this reason, it could become advisable for the Education Department to consider a request for a temporary exemption to cover the planned conversion so that individual complaints would not play an undue part in the overall educational decisions.

Equal Educational Facilities for Boys and Girls While only two complaints were received this year relating to the failure to consider boys and girls interests equally in the provision of educational facilities, they both represented substantial issues. In the first instance, some senior girls at a single sex state high school complained about their woodwork equipment being inferior to that offered in boys schools. On examination it was found that the situation was

much as complained of, but that the decision to limit woodwork equipment had been made by the school council because they considered that available funds would be better spent elsewhere. As this had resulted in additional equipment in other areas considered to be more in demand, there seemed little ground for requesting a change in the school itself, and the pupils concerned were, therefore, offered the possibility to transfer to another school which provided what they wanted.

17

The second complaint concerned the unequal treatment of boys and girls in the use of school sporting facilities. Informal inquiries during the period also suggested that this could have been a problem in a number of other schools and so, a Bulletin explaining the general issues and legal requirements was released (Appendix 1 ). This was prepared with co-operation from the Directors of Primary, Secondary and Technical Education, and was then circulated to school principals by the Education Department. Volume of Complaints While the volume of complaints in the educational area has not risen during the current period, there has been a high level of concern with the Equal Opportunity Act in schools and a substantial number of inquiries have been made, especially at public speaking engagements. This would appear to reaffirm a previous suggestion that parents are reluctant to complain on behalf of their children because of their vulnerability in the school situation. If this is indeed so, it would confirm the value of the educational program of the Equal Opportunity Board in education, and also the inclusion of equal opportunity issues in various teacher training courses run by the Special Services Branch of the Education Department.

18

SUMMARY 1. The pattern of complaints has been substantially the same this year as in the

previous period with the variation in numbers being accounted for by groups rather than individual complaints.

2. The problem of failing to offer technical education to girls in certain situations has continued. lt raises the possibility that the Education Department might be advised to request an exemption to cover their conversion program in this area in the future.

3. The problem of providing equal facilities for boys and girls has caused com­plaints, and a Bulletin relating to the use of sporting facilities in co-educational schools has been issued in an endeavour to remedy this.

4. Although the number of complaints in the educational area has been small, the volume of inquiries suggests a continuing reluctance by parents to complain on behalf of their children because of their vulnerability in the school situation.

19

CHAPTER 6 - THE PROVISION OF GOODS AND SERVICES During the current year there has been a 40% decline in the number of complaints of discrimination that have been made in the area of goods and services.

TABLE 10: COMPARISON OF MAIN AREAS OF COMPLAINT IN THE PROVISION OF GOODS AND SERVICES BETWEEN THE YEARS ENDING 30TH JUNE, 1979 AND 30TH JUNE, 1980

1979 1980 Male Female Male Female

Entertainment, recreation 5 17 2 12 and refreshment

Credit and Banking 10 2 9 Services of Professional 4 5 0 2

Associations Other 6 0 3

TOTAL 11 38 4 26

As this decline has coincided with a greater community awareness of the legislation, it can be presumed that in some areas, at least, it reflects a reduction in the incidence of discrimination.

TABLE11: COMPLAINTS CONCERNING THE PROVISION OF GOODS AND SERVICES MADE UNDER THE EQUAL OPPORTUNITY ACT 1977 FOR THE YEAR ENDING 30TH JUNE, 1980

Complaints on the Complaints on the

basis of marital basis of sex

status Male Female Male Female

Entertainment, recreation and 2 3 0 2 refreshment

Credit 0 1 1 7 Banking Services 1 1 0 0 Terms of Insurance 0 1 0 0 Transport Restrictions 0 0 0 1 Restrictions in Membership of 0 2 0 0

Clubs Restrictions in Services of Hotels 0 3 0 0 Restrictions in Sport 0 2 0 0 Services of Professional Associations 0 1 0 1 Services of Public Authorities 0 0 0 1

TOTAL 3 14 12

20

1. Provision of Credit Complaints concerning credit have been predominantly from women who have either been refused credit or have been required to supply special guarantees on account of being married. Complainants have alleged that their sex and marital status has been the basis for presuming an economic dependency and a lack of freedom to make in­dependent financial decisions irrespective of their income or security. In most instances, too, complainants have felt aggrieved because of their high level of credit worthiness when judged by the same criteria as would be applied to their husbands. The one man who made a complaint of discrimination on the basis of marital status alleged that being single cause him to be regarded as less reliable than if he had been married. All complaints suggested preconceptions concerning a persons behaviour formed on the basis of their sex or marital status which, in most instances, involved a traditional concept of female dependency in a marriage relationship. In all instances, the actual circumstances varied widely from the stereotype. Most complaints, too, resulted from the implementation of formal company policies which, in one'instance at least, was written into a sales manual. On no occasion, fortunately, was the problem difficult to conciliate and several complainants received credit as a result of their action. The reversal of a housing loan refusal was a particularly significant settlement in this regard.

2. Service in Hotel Bars Only three complaints of discrimination concerning serving women in public bars were made this year. This was in sharp contrast to the eleven complaints in the previous fifteen months and suggested that this problem could have been substantially eliminated- at least in the metropolitan area. The small number of complaints in general from the country, together with several informal reports of country hotels continuing to reserve the public bar for their male customers, makes a similar assumption for country districts less justified.

In the conciliation of these complaints I have received maximum co-operation from the Australian Hotels Association who have undertaken to educate their own members and whom I consider have been largely responsible for the im­proved situation.

21

3. Private Clubs In sharp contrast to the previous period, there have been no complaints con­cerning clubs in the current year. From informal information I have concluded that the reasons for this are twofold. Firstly, there is a better knowledge of the exempt status of clubs for one sex under the legislation and secondly, a number of clubs have altered their rules to equalise the facilities offered to their male and female members. Finally, it seems reasonable to predict that discrimination in the area of goods and services will continue to decline. The obviousness of discrimination in this area, the low risk involved in making a complaint on these grounds and the comparatively low cost of rectifying most discriminatory situations would all in­dicate that this is the area in which discrimination will most easily be eliminated.

SUMMARY 1 . There has been a substantial decline in complaints in the area of goods and

services. 2. Complaints concerning credit have predominantly been from women who have

either been refused credit or have been required to supply special guarantees on account of being married.

3. lt has been comparatively easy to reach a conciliated settlement in these mat­ters.

4. A steep reduction in complaints concerning hotels suggests that in the met­ropolitan area, at least, they are now less frequently reserving the public bar for male customers. Acknowledgement is made of the valuable part played by the Australian Hotels Association in achieving this improvement.

5. There have been no complaints concerning private clubs this year. The sug­gested reasons for this are a better knowledge of the exempt status of clubs for one sex, and indications that some clubs have altered their rules to provide more equally for men and women.

22

CHAPTER 7- ACCOMMODATION Only four complaints were received this year concerning discrimination in accom­modation. They all related to the failure to obtain a dwelling and were all made by women; three of whom were single mothers with small children. In one instance discrimination was established and the complainant was offered alternative accommodation. In the other cases, however, the reasons for refusal were more closely related to inadequate resources for paying the rent demanded. Overall, this year's pattern confirms the conclusions reached in my previous report concerning general problems in accommodation. At that time a Bulletin was cir­culated which has continuing relevance (Appendix 1 ). The small number of complaints in this area almost certainly reflects the fact that sex and marital status are infrequently in themselves determinants for offering accommodation. While, therefore, a single mother may often experience greater problems in obtaining accommodation than a family with two parents, this usually reflects factors such as employment insecurity and income level which are addi­tional to her sex and ··1arital status. Indeed, it seems unlikely that a single mother with a secure income independent of her need to work would have any special problems in finding suitable housing.

SUMMARY 1. The four complaints of discrimination in accommodation were all made by women,

three of whom were single mothers with small children. 2. The reason for refusal in three instances related to inadequate resources for

paying the rent demanded. 3. In general, it appears that problems in obtaining accommodation relate to more

complex factors than a preferred sex and marital status although these are often interrelated.

23

CHAPTER 8 - CONCILIATION This year there has been a higher proportion of protracted negotiations than in the preceding periods and a significant change in the outcomes of attempted settle­ments.

TABLE 12: COMPARISON OF OUTCOMES OF CASES BETWEEN THE YEARS ENDING 30TH JUNE, 1979 AND 30TH JUNE, 1980

1979 1980 Conciliated Settlement 120 76 No Negotiated Change 53 63 Case in Progress 11 21 Withdrawn 0 4 Board Hearing 1 0 TOTAL 185 164

The greater number of cases in the employment area, together with the higher proportion involving work conditions, resignations and dismissals account largely for the changed pattern. Because of the increasing complexity of conciliated settle­ments, there has been a rise in the volume of work despite the drop in the overall number of cases. The following table shows broadly the amount of work involved in each case.

TABLE 13: TYPE OF CONTACT MADE RELATING TO COMPLAINTS FOR THE YEAR ENDING 30TH JUNE, 1980

Initial Contact Only Multi-contact including one

conciliation interview Multi-contact including two or

more conciliation interviews

Male 7

15

7

Female 31

54

49

A further reason for the changed pattern has been a steep decrease in the number of cases resulting from a respondent's ignorance of the legislation. In 1978, this was the main cause for contraventions of the Equal Opportunity Act and remedies frequently involved an initial interview in which the legislation was explained and a suitable remedy was arranged. In the current period the investigation of both disputed facts and differing inter­pretations of particular events has become a standard preliminary to obtaining a conciliated settlement. In some complex situations, this has involved interviewing and re-interviewing as many as six people. While this has been time consuming, it has frequently enabled me to convince both sides that the view I have formed has been based on a full understanding of the situation.

24

TABLE 14: OUTCOME OF COMPLAINTS REFERRED TO THE COMMISSIONER FOR EQUAL OPPORTUNITY FOR THE YEAR ENDING 30TH JUNE, 1980

Male Female Total Discrimination Recognised, Basis for 7 29 36

Conciliation Conciliation on the Basis of Possible 3 24 27

Discrimination Possible Discrimination Not Conciliated 0 0 0

Referred to Equal Opportunity Board No Apparent Discrimination, No Change 12 37 49

Attempted Complainant Request for Referral to Equal 0 0 0

Opportunity Board No Apparent Discrimination, Counciliated 2 7 9 Settlement Outside Jurisdiction, Conciliated Settlement 0 4 4 Outside Jurisdiction, No Change Attempted 1 13 14 Case in Progress 4 17 21

Withdrawn 0 4 4

164

Two interesting points reflected in this table are the greater proportion of cases in which discrimination does not appear to have played a part and the small but significant number of conciliated settlements achieved where complaints have either been outside the jurisdiction of the Equal Opportunity Act or have not involved discrimination. Wide publicity, together with an incomplete understanding of the legislation has probably been responsible for the increase in inappropriate com­plaints. In particular, the press coverage of the outcome of the Wardley hearing resulted in a number of people hoping for similar outcomes. At the same time, however, the Wardley case has also increased the reluctance of both complainants and respondents to appear before the Equal Opportunity Board, and has largely accounted for the absence of referrals over this period.

There has also been an increasing number of complaints from people who do not know why they failed to obtain appointments or promotions, or else have been dismissed and have used a complaint of discrimination to force an investigation of their circumstances. Conciliating complaints outside the jurisdiction of the Equal Opportunity Act has occurred principally on the basis of a general recognition of an unfair or unfortunate situation which the respondent has expressed a wish to remedy irrespective of legal requirements. Several examples of this have been cases where an employer or provider of goods and services has been hitherto unaware of grievances and, once knowing the situation, has taken steps to remedy it. Finally, the standard of conciliation work itself has almost certainly improved over the period. The volume of cases has enabled the identification of several char­acteristics specific to discrimination situations and techniques have been developed for dealing with these. (Appendix 6 reproduces an article examining this question in some detail.) SUMMARY 1. Fewer complaints this year have resulted from a respondent's ignorance of the

legislation. 2. Cases are now more likely to involve protracted negotiations, especially in the

employment area and this has increased the volume of work despite the drop in the overall number of complaints.

3. Conciliation more frequently now involves investigation of disputed facts and differing interpretations.

4. Publicity has, on occasions, led to an increase in inappropriate complaints. 5. There have been a small but significant number of conciliated settlements

achieved in complaints found not to involve disc~imination under the Equal Opportunity Act.

6. Conciliation techniques themselves have been refined and developed.

26

CHAPTER 9 - OTHER ACTIVITIES Since the Equal Opportunity Act came into force, there has been repeated con­firmation of the importance of the part played by publicity both through increasing the number of complaints and also in effecting improvements in certain areas of discrimination independently of the need for complaints. For this reason, informing the public continues to be an important part of the work of this office. Public speaking, participation in teaching and research, publication of articles and committee work have all played a part in this. Public Speaking Frequent public speaking engagements have continued this year (Appendix 2 gives details) and audience response suggests that this direct method of informing the public is a particularly effective way of increasing acceptance and understanding of the Equal Opportunity Legislation. Seminar Teaching The inclusion of a seminar or lecture on equal opportunity issues has now become a regular part of a number of vocational and in-service training courses. Through this, business managers, educational administrators, careers teachers, trade union officials, social workers and personnel officers have all been involved in seminars or lectures given during the year (Appendix 2). Research Computerisation of data relating to complaints is currently being planned. This will include material relating to all cases since the inception of the legislation and should provide an effective means of utilising the information obtained through complaints in any relevant research or educational programs of the Equal Opportunity Board in the future. Publications "Equal Opportunity Forum" has become an increasingly useful outlet for information relating to complaints this year and in addition, articles have been submitted to several other journals (Appendix 4 gives lists of articles written during this period). Committee Work Membership of several government and non-government committees has widened considerably the areas of decision-making in which consideration of equal op­portunity issues has become an integral part (Appendix 3 lists committees). While participation, in some instances, has been relatively minor, work with others has involved regular reporting and executive responsibility. This has been the case with the Equal Opportunity Educational Advisory Committee for whom I convene a research sub-committee and provide staff capacity. Some re-organisation during the year has also resulted in my reporting regularly to the Equal Opportunity Advisory Council and providing secretarial and research staff services for their work. Of increasing value, too, has been the work of the Inter­departmental Committee on Equal Opportunity. Through reporting regularly to this body I have been able to inform government departments of the type and frequency of complaints concerning discrimination and this has almost certainly been a factor in the significant drop in complaints in this area. Finally, service on two university governing bodies has led to close ties with those institutions and has been instrumental in the establishment of a university-based research project in direct response to a problem I have considered critical to the participation of women in the workforce (Appendix 7 provides an outliine of this research.)

27 31943/81-2

SUMMARY 1. The demonstrated importance of publicity has led to continued emphasis on

activities to inform the public. 2. Frequent public speaking has apparently been effective in this regard. 3. Seminar teaching is also reaching an increasing number of different community

groups through the inclusion of equal opportunity issues in several courses. 4. Computerisation of data relating to complaints is currently being planned to make

information more accessible for research and education. 5. Information on complaints has been made available to "Equal Opportunity Forum"

and articles submitted to other journals. 6. Membership of several government and non-government committees has led

to information sharing and ensuring that equal opportunity issues have been included in relevant decisions.

7. Close connections with two universities has resulted in increased research of issues relating to equal opportunity.

28

CHAPTER 10 - PROBLEMS OF LEGISLATION In the Second Annual Report of the Commissioner for Equal Opportunity, a number of areas of administrative difficulty were identified with suggestions for legislative change (Appendix 8).

Developments this year have shown intensified problems in some areas while in others, difficulties have been substantially reduced. Discrimination as a Dominant Ground for Complaint The need to establish the dominance of discrimination as a ground for complaint has become an increasing problem with the change in the type of cases being handled this year. In the current period the basis of complaint in a number of instances of dismissal and forced resignation has been that the behaviour which has led to the confron­tation has been less acceptable in a woman than it would have been in a man. In substantiating these complaints evidence has been produced to show that superiors have displayed attitudes suggestive of firm views on the appropriate roles of men and women, and the conclusion has been drawn that termination has been the punishment for not conforming to these. While the conclusiveness of the evidence has varied considerably in these cases, there has, almost invariably in addition to these suggested attitudes, also been a particular set of circumstances precipitating termination. In most instances it has

29

been possible to form an opinion as to whether a cause of the dismissal has been less favourable treatment to the complainant on account of his or her sex. What has been much more difficult, however, has been the establishment of dom­inance. Furthermore, if a member of the other sex would not have been punished by dismissal for the same action, the need to establish dominance appears to be irrelevant to the detriment suffered. Also, because of the difficulty of defining what constitutes dominance, it seems likely that this particular provision in the Equal Opportunity Act will lead to an increasing number of referrals to the Equal Op­portunity Board for a formal determination when conciliation has not been able to achieve a settlement. Education and Research During the current year the Equal Opportunity Board has created an Equal Op­portunity Educational Advisory Committee with responsibility for formulating ed­ucation and research programs, and this has largely overcome the problems relating to Section 15( 1) of the Equal Opportunity Act which were discussed in my previous report. The ex-officio membership of the Commissioner on this Committee has facilitated the integration of knowledge generated by complaints into the education and re­search programs. lt is also anticipated that the projected computerisation of this information will provide more precise and detailed data in a form that can be utilised without the problem of individual identification. Indirect Discrimination The equal treatment of all individuals in circumstances calculated to favour one sex has become an increasing problem this year. Job designs involving manual requirements that favour one sex have been the most common form of indirect discrimination, although instituting formal hurdle requirements that are or have been the prerogative of one sex has also posed problems. Furthermore, discussions in relation to these difficulties have left little doubt that in some instances, at least, the purpose of a number of provisions has been to eliminate the entry of one sex into what has hitherto been the preserve of the other in a way that does not contravene the law. 1t is suggested in view of this that a provision similar to Section 16 of the South Australian Sex Discrimination Act might be included to combat the problem. Section 16 of this Act states:

"16( 1) A person discriminates against another on the ground of his sex or marital status he treats him less favourably than in identical or similar cir­cumstances he treats or would treat a person of the opposite sex or of a different marital status.

(2) A person discriminates against another on the ground of his sex or marital status if he discriminates against him on the basis of a characteristic that appertains generally to persons of that other person's sex or marital status, or a presumed characteristic that is generally imputed to persons of that sex or marital status.

(3) A person discriminates against another on the ground of his sex or marital status if he discriminates against him by reason of the fact that he does not comply, or is not able to comply, with a requirement and (a) the nature of the requirement is such that a substantially higher proportion

of persons of a sex or marital status, other than that of the person dis­criminated against, complies or is able to comply with the requirement than of those whose sex or marital status is the same as the sex or marital status of that person; and

(b) the requirement is not reasonable in the circumstances of the case."

30

Other Areas Previously Covered The previous difficulties outlined in my Second Annual Report relating to Sections 18 (the exceptions in employment relating to conditions as well as applications for positions); 33(1 )(b) (the exemption of clubs which also provide a formal qualifi­cation); and 53(3) (the terminology permissible in advertisements) of the Equal Opportunity Act remains substantially unaltered. Power to Investigate Complaints Under Section 35(2) of the Equal Opportunity Act the Commissioner is given power to investigate matters referred by the Equal Opportunity Board where they become aware that an act of discrimination may have been committed. However, under Section 39(2) the Commissioner is only required to make all reasonable endeavours to resolve the subject matter of a complaint where he is of the opinion that it might be resolved. In practice, in most cases, the procedures followed under the two Sections are similar and involve both investigation and conciliation. Because, however, there is no for­mal power to investigate complaints under Section 39(2), the process can be blocked at a point before it has been possible to make any assessment of the situation, and it has become necessary in the few such instances to refer the matter to the Equal Opportunity Board even though the complaint might well have been con­ciliated if the respondent had been required to permit an investigation. Furthermore, the creation of two functions would permit a more rational use of staff resources enabling conciliation by the Commissioner to follow preliminary inves­tigation by members of her staff where circumstances suggested it. Scope could then exist for facts elicited in investigation to be provided for the use of parties in a Board hearing without this being involved in things said or done in the course of conciliation. SUMMARY 1 . The nature of complaints in the employment area during the current period has

confirmed the need to amend the requirement to establish discrimination as a predominant basis for a complaint.

2. Problems previously relating to the Commissioner's role in the education and research functions under Section 15(1) of the Equal Opportunity Act have now been largely overcome in practice by her ex-officio membership of the newly created Equal Opportunity Educational Advisory Committee.

3. Indirect discrimination continues to be a substantial problem requiring rectifi­cation.

4. There continued to be problems relating to practices within the workplace where an employer is exempted from the provision of the Act due to the number of staff employed.

5. The terminology of advertisements is still being insufficiently regulated by Sec­tion 35(3) of the Equal Opportunity Act.

6. The absence of a formal investigation function for the Commissioner in relation to individual complaints has created difficulties which would be resolved by its inclusion under Section 39 of the Equal Opportunity Act as well as Section 35(2).

31

CHAPTER 11 - CONTACT WITH OTHER ORGANISATIONS Circulation of Equal Opportunity Bulletins A most valuable development in the work of the office this year has been the co­operation which has been received from outside bodies in the circulation of infor­mation Bulletins. Not only has this enabled a far wider dissemination of information than our re­sources would have otherwise permitted, but it has indicated a support of a kind that has given reassurance to organisations and individuals unfamiliar with the legislation. In this regard, thanks are due to the following organisations which have included information Bulletins in their circulation lists.

Victorian Employers Federation Victorian Association of Automotive Industries Drake International Real Estate and Stock Institute of Victoria Victorian Education Department

Trade Union Co-operation Trade union co-operation has continued this year. Further courses have been given at the Trade Union Training Authority and individual unions have been helpful in assisting with general problems often outside the jurisdiction of the Equal Oppor­tunity Act. Overall, I have kept unions informed of provisions in Federal Awards or State Determinations that appear to have involved discrimination in certain cir­cumstances and they have expressed concern to alter these. The Trades Hall Council has also assisted in the distribution of the pamphlet "Equal Opportunity and You". Assistance with Enforcement of Legislation This year, two organisations in particular have provided on-going and regular as­sistance in the implementation of the Equal Opportunity Act. The Australian Hotels Association has largely assumed responsibility for its members' conformity with the goods and services requirements of the legislation so that relevant complaints have been resolved without the necessity of my visiting any hotels during the period. This has reduced potential conflicts in this area and the efforts of the Association have been greatly appreciated. The Classified Advertisements Section of "The Age" has continued to provide substantial assistance in the implementation of the advertisements provisions of the Equal Opportunity Act. This has been appreciated both for its effect in a par­ticularly important area and because the work has often required that staff members should confront advertisers resistant to any proposed alteration. Co-operation with Other Bodies Involved in Discrimination Issues Continuing co-operation has been maintained this year with the Victorian Com­mittee on Discrimination in Employment and Occupation. However, while problems of mutual concern have been discussed, overlap of cases has been minimal, and referrals under the Equal Opportunity Act have been confined virtually to problems of sex discrimination concerning Federal instrumentalities. The National Conference of Commissioners for Equal Opportunity has held three meetings in the current period. Developments here have included representation from the New Zealand Government which has been particularly valuable. A joint meeting with various state Anti-Discrimination Boards at the most recent conference also added a further dimension. During this year the administration of the Anti-Discrimination Bureau, Department of the Premier, has become my direct responsibility and our two staffs have

32

amalgamated. This has increased our mutual understanding of all facets of dis­crimination and has offered a substantially more integrated service to the public. SUMMARY 1. Appreciation of assistance given by various organisations with the distribution

of the "Equal Opportunity Bulletins". 2. The co-operation from the trade union movement. 3. The assistance with enforcement provided by the Australian Hotels Association

and "The Age" Classified Advertisements section. 4. Co-operation with other bodies involved in anti-discrimination measures. 5. The integration of the Office of the Commissioner for Equal Opportunity and

the Anti-Discrimination Bureau in the Department of the Premier.

33

CHAPTER 12- CONCLUSION

Because the Equal Opportunity Act is essentially concerned about educating the community about the elimination of discrimination, this Annual Report has been designed to measure progress where possible. A comparative approach has, there­fore, been adopted including sufficient material from the previous period to give it meaning. Overall, this has, I believe, revealed an encouraging picture. Not only have im­provements been made in many areas, but problems have been more clearly identified and the effectiveness of certain remedies has been demonstrated. In particular, the reduction in the number of complaints of discrimination in job se­lection has been significant. Since the inception of the legislation this has been the most common cause for complaint, and its considerable reduction in a situation of overall increase in employment complaints must indicate progress. The reduction of complaints involving the provision of goods and services is also encouraging, although the general absence of complaints from country areas and the lack of publicity on these issues must be taken into account. A less promising sign has been the increase of complaints within the workplace which have reflected the relationship between men and women when they are in an employment situation as distinct from the exclusion of members of one sex from a particular area of work. This has suggested the continuation of traditional attitudes towards the subordinate or secondary role of women in many places of employment combined with a deep resistance to change. A cause for continuing concern is the number of indications that have surfaced suggesting that employers are, in some instances, systematically evading the leg­islation. Equally worrying are the indications of a widespread incidence of sexual harassment. The part played by publicity should also be noted with its implications for the role of education and research in eradicating discrimination. Finally, the dedication of the staff should be mentioned. In an area where there is often public antagonism and suspicion associated with their intervention, staff members have shown a high order of commitment and willingness to undertake the often unpleasant and arduous tasks essential for the successful operation of the office.

34

Number 1.

A PERIODICAL INFORMATION BULLETIN ON ISSUES OF

CURRENT CONCERN TO THE COMMISSIONER FOR EQUAL

OPPORTUNITY

THE ALLOCATION OF OFFICE DOMESTIC CHORES

March, 1979.

Since the Equal Opportunity Act came into force, I have received a number of complaints from women that chores associated with their place of employment are allocated on the basis of sex rather than on level of responsibility or by job definition. This has varied from a roster for making tea or coffee to the actual purchase of provisions involving ~any dollars per week and a laborious system of reimbursement. In one extreme case women in middle management were expected to undertake chores from which office boys were exempt.

Almost invariably such complaints are made with considerable fear of repercussions because of the close relationships in the office and the demeaning nature of the work involved. By and large those not required to participate resist efforts at change and pressure is put on,_women to continue the practice.

The allocation of duties on the basis of sex relates to terms of employment and as such is covered by Section 18.(1) (b) of the Equal Opportunity Act which states that "It is unlawful to discriminate against a person on the ground of sex or marital status in the terms on which an employer offers employment". If therefore, men and women are offered employment which is comparable except that there are jobs allocated to them according to their sex, this can be cause for complaint under the legislation.

Where discrimination does occur the remedies obviously depend on the individual circumstances but there are useful broad guidelines nevertheless.

In some large offices, the preparation of refreshment is a particular job and a specific part of the duties for which a person is employed and therefore becomes part of the job definition. In this case, it frequently occurs that it is always a woman involved because of the acceptec1, practice of employing a person of a particular sex to specific jobs. This practice itself however is likely to break down as the legislation is implemented and jobs in offices become more evenly distributed between the sexes.

31943/81-3 35

A practice that overcomes the problem in many instances is that of rostering the chores in question in accordance with levels of responsibility. At higher levels it may become uneconomical to use staff time for such duties although there are often hidden payoffs in terms of staff morale and generally increased efficiency. In regard to costing of such duties, the increasing use of automatic tea and coffee dispensers probably speaks for itself.

Finally, while this issue may at first glance appear relatively trivial, there are two critical points to be borne in mind when considering it. Firstly, the various chores associated with providing refreshments, break into the working day in such a way that the allocation of responsible jobs is often made to those who are not involved, so that being allocated those duties can actually have a detrimental effect on an employee's performance record and so influence their opportunities for advancement. More importantly, however, there is an attitude associated with making and serving tea and coffee. Where it is evenly distributed, there is no lack of status involved in performing these duties. Where it is not, it can become a task which is seen as demeaning by those who do not do it and which is denegrating to those who do. The attitudes expressed by those who resist changing discriminatory practices in this area bears testimony to this and it is more this than anything else that makes it of particular concern. As a practice that operates to perpetuate status difference between the sexes, the allocation of menial office chores on the basis of sex is a significant barrier to the achievement of equal opportunity.

Fay Marles, Commissioner for Equal Opportunity.

36

Number 2.

A PERIODICAL INFORMATION BULLETIN ON ISSUES OF

CURRENT CONCERN TO THE COMMISSIONF:R FOR EQUAL

OPPORTUNITY

April, 1979.

SOME PROBLEMS OF DRESS REGULATIONS IN EMPLOYMENT

Whenever employees work face to face with the public their appearance becomes a matter of importance. They may or may not wear a uniform but either way their clothing and grooming is still seen to reflect at least to some extent on the organisation that employs them. Nearly everyone however, is also anxious to make their own personal statement through what wear and so it is probably not surprising that problems of dress been appearing regularly amongst the complaints made under the Equal Opportunity Act.

Predictably tod, it is often a subject that rouses strong emotions and many enquiries have therefore been from people asking about their rights but reluctant to antagonise their employer by making a formal complaint.

For questions of dress to come under the jurisdiction of the Equal Opportunity Act they must, of course, relate to discrimination between the sexes and this is not always a straightforward matter to determine. This Bulletin therefore, attempts to clarify some of the issues and suggest some possible ways round the more common problems.

The two most common causes for complaint under the Equal Opportunity Act relate to women being required to wear uniforms when men are not, and men being subject to a number of regulations relating to ties, suits, beards, hair length etc. when women may virtually wear what they please.

In the majority of cases where only women are required to wear uniforms, they are not needed so much for protection as to create a corporate image, for example in supermarkets, banks, insurance companies, and in such cases it can become a matter of concern under Section 18 (1) (b) of the Equal Opportunity Act which states that it is unlawful for an employer to discriminate against a person on the grounds of sex or marital status in the terms on which the employer offe:.:s employment.

There can of course, be a great number of advantages to employees in wearing uniforms and it would be wrong to give the ~mpression that resistance is general - although by the same token there have been no enquiries yet from men wanting to be allowed to wear them. Objections have been on many grounds including comfort, appearance, lowering of status and finally the time spent in changing.

37

The problem of comfort usually relates to being cold in a thin uniform that is not appropriate for wearing over other clothes. This has been surmounted in various ways either by a smock design that can be put over street clothes or fitted garment suitable either for wearing with slacks or on its own.

Complaints about a uniform's appearance are difficult because this is a matter of taste and there are always differing views on what is attractive or smart. What is probably critical to this issue however, is how the decision is reached. A ruling agreed to after staff consultation often has more acceptance, despite individual differences, than one seen primarily to reflect the personal taste of the employer.

Several women have complained that a certain type of uniform suggests a subordinate level of responsibility and that only the women are labelled in that way. There have also been complaints about blanket damaging the status of more senior women whose roles have misinterpreted or downgraded. Making the uniform optional or alternatively confining it to people of either sex doing particular duties or certain job classifications seems a straightforward way of eliminating this difficulty.

The problem of changing in and out of uniform in an employee's own time is usually relatively easy to solve. If an employee does not wish to wear uniform in the street, it normally requires four changes per day to wear it at work. Almost all complaints about this have arisen because of calculating time from starting work rather than arrival. Merely allowing women to change in the employer's time can relieve the situation.

Several companies have created a distinctive and well respected image by having all , both male and female, in uniform and there is no doubt making uniforms compulsory for all or abolishing them altogether eliminates most problems with regard to the Equal Opportunity Act. One example of this for instance, has been a company which has adopted a uniform over-garment that can be worn by either men or women in conjunction with their own clothes, when they are serving the public. On the other hand, such a solution often has practical drawbacks and in general, uniform problems can probably be solved most making their use optional and applying the same general dress to everyone who does not choose to wear them.

A different issue entirely is that of applying general standards of dress even-handedly between the sexes where there is no uniform, and this can be exceedingly complex. The basic difficulty arises not only from the need to equate two entirely different modes of dress, but also to the way in which the standards, once determined are enforced. This is not made easier furthermore by the fact that most executives are men and many men understand the finer points of their own dress better than those of women, and also find it easier to criticise their own sex than the other. Indeed it is not surprising that most of the complaints in this area are from men relating to the fact that while they have a great number of restrictions imposed on them, women are virtually allowed to wear what they please. A further complication in this area is the fact that while suits, for instance, are a clear indicator of a particular level of formality for men, there are no exact equivalents amongst women's clothing. Similarly it is hard to equate the question of whether women should wear slacks with an

38

exact parallel in men's wear. Indeed it is obvious that different employers see these problems differently and the issue is not so much about the particular rules they apply, but about whether the degree of restriction or regulation is similar for both sexes. For example, it seems reasonable that if an employer insists on suits for male staff, he may also stipulate whether or not his female staff wear slacks.

To date the most satisfactory solutions to these problems have probably been achieved through laying down basic ground rules and making sure they are administered fairly between the sexes. Enforcing dress requirements appears easier, too, when there are senior staff of both sexes involved and it is not necessary for one sex to make and enforce rules about the appearance of the other.

Finally although individual problems and solutions are so diverse, it is worth emphasizing that the principle itself is relatively clearcut. If an endeavour is made to deal with both sexes even-handedly there should be little cause for complaint under the Equal Opportunity Act. Indeed the problems to date have sprung far more from disregarding the principle of equal opportunity than from a lack of success in attempts to implement it.

Fay Marles, Commissioner for Equal Opportunity.

39

Number 3.

A PERIODICAL INFORMATION BULLETIN ON ISSUES OF

CURRENT CONCERN TO THE COMMISSIONER FOR EQUAL

OPPORTUNITY

PROBLEMS OF ALTERNATIVE FORMS OF ADDRESS FOR WOMEN

June, 1979.

Because the courtesy titles "Miss" and "Mrs." clearly define the marital status of women, they may be used to discriminate under the Equal Opportunity Act in a way that the newer title of ''Ms *" may not ..

Indeed a number of complaints have been received about organisations which refuse to allow the use of "Ms." by their employees or in applications for their services, leading to possible discrimination either under Section 18 (1) (2) of the Act relating to terms of employment, or under Section relating to the terms on which goods and services are

The most usual reason for the refusal to allow women to adopt "Ms." as a title, appears to be a personal dislike of it. Amongst the reasons given for this have been the awkwardness of pronouncing it, its women's liberation connotations or even more generally a resistence to the breakdown of traditional courtesies. All these arguments are understandable but there are however, reasons for allowing women to keep their marital status wish to do so, and these should be taken into considera a point of view.

Traditionally women, far more than men, have derived added respect in the community from being married. The term for instance, has tended to be mildly derogatory and indicative lower regard our society has traditionally accorded the unmarried mature woman. The title "Miss" therefore has connotations which some people wish, not surprisingly, to avoid.

Looked at from another angle, there might be advantages accorded to the married woman in many instances by her title especially in job applications. To be married for example, could create a more favourable preliminary impression for a woman than to be single, because of its connotations of warmth, maturity and stability, which are virtues not always credited equally to the spinster, who if she is young, may be suspected of being more interested in her social life than her job, or, if older, of being less flexible and understanding. Few would deny the existence of these stereotypes and the adoption of a common title for women would help to break them down. Equally importantly, it would also insure that in jobs where the characteristics mentioned were of relevance they would be adequately assessed through the selection process and would not be in any danger of being merely presumed.

41

Being married is not always advantageous however, especially in the present economic climate. Despite the Equal Opportunity Act, some employers have adopted a policy of not employing a married woman when a single person is available, or alternatively of making this group the first to be stood down when retrenchments are made. Clearly the title "Mrs.'' is no help in this situation as it can be used to identify those women at risk of losing their jobs.

These problems do not of course imply the substitution of the new title for the old as a general rule, but rather they allow the additional option for those women who consider their marital status a private matter. For this reason the permitting of such an option seems desirable as a matter of principle, but in any case it is important in those circumstances which could involve discrimination under the Equal Opportunity Act.

A different problem altogether, relates to the refusal by some instrumentalities to allow women to retain their single name after marriage if they wish to do so. Legally this is an alternative open to women and refusal can involve discrimination in much the same way as the refusal to allow the courtesy title "Ms. ".

If a woman wishes to retain her own name it is usually for private reasons although as a practice, it appears to be increasing. This is probably largely because of the part women are playing in the workforce and the frequent need to establish and maintain a career reputation which can be put at risk through sudden anonymity or confusion about identity. Once again the objections to this appear to have been associated with the wish to protect traditional values together with the reluctance to change identity. Whatever the reasons however, the refusal to recognise a woman's right to keep her maiden name after marriage has led to several complaints under the Equal Opportunity Act, which have in each instance been resolved by negotiation.

Finally, although this use of alternative titles seems a relatively straightforward matter, it has nevertheless been the cause of considerable resentment and distress for both the complainants and respondents in the cases that have come to my attention. For the women concerned this has come from a sense of being deprived of a basic right or being put at an unfair disadvantage or even in some cases being labelled as neurotic, unfeminine or deviant. The respondents on the other hand have quite genuinely found it difficult to believe that women could be suffering any real handicap or have a justified grievance against such well established conventions.

Fay Marles, Commissioner for Equal Opportunity.

42

Nurrber 4.

A PERIODICAL INFORMATION BULLETIN ON ISSUES OF

CURRENT CONCERN TO THE COMMISSIONER FOR EQUAL

OPPORTUNITY

August, 1979.

GUIDELINES FOR SELECTING TENANTS FOR RENTED ACCOMMODATION IN ACCORDANCE

WITH THE PROVISIONS OF THE EQUAL OPPORTUNITY ACT

Although the accommodation section of the Equal Opportunity Act has to date been the least used, it has nevertheless been one of the most difficult to administer.

There are basically two reasons for the problems associated with it. These relate firstly to th~ way in which marital status tends to be tied to other characteristics important in accommodation selection and secondly to the almost universal practice of selecting tenants through an intermediary.

The two issues that appear to be most critical in selecting tenants are those associated with their life style and their ability to pay. While the importance of financial reliability is self evident, the way in which a tenant uses accorrmodation is equally vital in relation to capital depreciation. Added to this are certain moral considerations which can be of varying significance to individual owners.

The basic difficulty with this under the Equal Opportunity Act, is that these factors all tend to be seen as linked to marital status which has consequently become a major method of assessing a tenan~s desirability. A married couple for instance, may be favoured as likely to be stable, morally well respected, and unlikely to damage the property through riotous behaviour. Single people on the other hand, are often seen as likely to have wild parties, practice alternative life styles, be improvident with their money, neglect the garden and even give the house a bad name in the neighbourhood. A single parent - particularly a mother - may be regarded as a risk financially and also if she has more than one child, likely to have too little control over them to prevent property damage.

43

While there is undoubtedly some link between life style and marital status, such methods of selection do an obvious injustice to people whose marital status as such rules them out of selection. Indeed they are put at abasic disadvantage of their income or their way of life and incidentally of course, may be deprived of very desirable tenants. As an example of this, a separated woman on an adequate salary, living with an adult working son or daughter, could be expected to fill all the criteria of a desirable tenant and yet might not even be considered for selection where the landlord had stipulated in advance a requirement for a married couple. It is such discrimination as this that could now provide ground for complaint under the Equal Opportunity Act. This does not mean of course, that any consideration should be given to tenants in categories, but mere that they should not marital status or sex be put at a basic The right of a to choose tenants in accordance with what he or she sees as desirable individual characteristics as distinct from belonging to specific (i.e. being married , male or female etc) is in no way under What is being is the disqualification of people from competing for selection through their marital status or sex.

The second major area of difficulty associated with accommodation results from the use of agents in the selection of tenants. Through an agent, a landlord may stipulate a marital status requirement in tenant selection, leaving the agent to administer the request. Through this it is the agent that is placed in the difficult position of either refusing to comply with his client's wishes and so risk losing business, or else laying himself open to complaint under the legislation. It is therefore, for both and landlords to be aware of practices that give groun< for and for landlords to understand the difficulties that could create for agents trying to comply with a discriminatory requirement.

SOME ACCOMMODATION ISSUES RELEVANT TO THE ErUAL OPPORTUNITY ACT,

In essence this Bulletin is making the following points:-

1. A landlord or agent has the right to choose the tenant considered most suitable.

2. They have the right for instance to refuse individuals on the grounds of personal suitability, such as, their life style or ability to pay.

3. But who

cannot refuse a otherwise meet

on the grounds of sex or marital status selection criteria.

4. This means, consequently, that a person's sex or marital status is no~ in itself a valid basis for withholding accommodation.

5. discriminating on this basis can be liable to complaint under legislation.

6. Landlords are in the same position as agents if they refuse to consider a tenant on this basis.

Fay Marles, Commissioner form]';qual Opportunity.

44

Number 5. February, 1980

A PERIODICAL INFORMATION BULLETIN ON OF

CURRENT CONCERN TO COMl~oJJSSIONRR FOR EC::UAL

OPPOFITUNT1'X

THE RELATIONSHIP OF EHPLOYMENT AGENCIES TO EMPLOYERS IN MEETING THE

PROVISIONS OF THE VICTORIAN EGUAL OPPORTUNITY ACT

Under tloe Equal Opportunity 1\ct 1977, it is unlawful except in some clearly defined circumstances (listed below) to refuse to consider individuals for employment on account of their sex.

Since the legislation came into force, the single most common cause for complaint by both men and women has been the insistence, by employers that they will consider members of only one sex for an advertised position. Such a policy has prevented a number of individuals from competing for a job on the basis of their skills and experience and in many instances has clearly contravened Section 18(1) of the Equal Opportunity 1\ct which states that :-

18(1) It is unlawful for an employer to discriminate against a person on the ground of sex or marital status

(a) in determining who should be offered employment;

Difficulties have been experienced by some Employment Agencies in this connection because certain employers have wanted to continue previous discriminatory policies when using their services. In these circumstances, agencies have been told which sex they must select and this has placed them in the awkward position of either endeavouring to circumvent the legislation or else refusing to meet their clients' requirements. Unfortunately too, as the provisions of the legislation are now widely known, such refusals risk confrontation and consequent loss of business. The purpose of this Bulletin therefore, is to clarify the requirements of both employers and agencies in conforming to the legislation and to specify those situations when its provisions do not apply.

In a situation where an agency under instructions from a client, treats members of one sex less favourably than the other in selection for a particular position, both the agency and the employer are liable to complaint. While the employer is obviously limiting who shall be offered employment through the instructions to the agency, the agency itself is also discriminating under Section 24 of the Eoual Cpportunity Act which states:-

24. It is unlawful for a person, in the cours~ of carryinq on a business (whether or not for fee or reward) of introducing persons seeking employment to employers, to discriminate against another person on the ground of sex or marital status -

(a) by denying the other person any of the services of the businessi or

45

(b) in the terms on which the first-mentioned person provides those services.

It seems clear from this that an employer may be requiring an agency to contravene the law by insisting on limiting employment offers to members of one sex while the agency too, could be exposing both itself and the employer to the risk of complaint in complying with such a request.

To some extent at least, this problem appears to have arisen from confusion by both employers and employment agencies concerning the purpose of the legislation which has on occasions been viewed as a device for forcing them to employ someone they may not themselves have considered the most suitable candidate. In fact, however, the legislation has been designed in this context primarily to create a framework to enable people to compete for employment on the basis of their skills, experience and individual qualities, and not to be disqualified by their sex or marital status before they have had the opportunity to demonstrate their suitability or capacity. There is therefore no pressure on an employer to make an appointment favouring one sex or the other. In this regard it may however be worth recording that experience in dealing with complaints has highlighted the fact that both men and women applying for jobs that are non-traditional for their sex, have tended to be particularly capable individuals. Although some have appeared to be obviously unsuitable, others have had skills, determination and independence that have made them outstanding candidates and particularly promising employees.

Finally, in some circumstances it is lawful (but not compulsory) to request members of one sex only to apply for positions and these are defined in Section 18 (3) of the Equal Opportunity Act which states: --

18 (3) This section does not apply to --

(a) employment for or in connexion with a private householdt

(b) discrimination on the ground of sex in the offering of employment to actors or performers for the purposes of dramatic performances or entertainment;

(c) discrimination on the ground of sex.in employment where the number of persons employed by the employer does not exceed five (disregarding any persons employed within his private household) tor

(d) the offering of employment only to personsof the one sex where as a term of the employment the employe' is required to reside in communal residential accommodation provided by the employer only for persons of that sex.

Employers too, may apply for an exemption in any circumstances in which they consider it is necessary to employ a person of a particular sex. This provision is covered by Section 34(1) of the Equal Opportunity Act which states:--

34 (1) The Board may, by notice published in the Government Gazette, grant exemptions from any of the provisions of this Act in relation to --

(a) a person, or class of persons; (b) an activity, or class of activity; or (c) any circumstances of a specified nature.

It is suggested that prior to requesting an exemption however, inqiiries should be made to this office so that full information relating to procedures etc, may be given.

In conclusion, inquiries would be welcomed from any employer or agency who wishes to raise any other issues relating to the matters discussed in this Bulletin.

Fay Marles, Commissioner for Equal Opportunity.

46

Number 6.

A PERIODICAL INFORMATION BULLETIN ON ISSUES OF

CURRENT CONCERN TO THE CO~ISSIONER FOR EQUAL

OPPORTUNITY

February, 1980.

REQUIREMENTS UNDER THE EQUAL OPPORTUNITY ACT CONCERN!Nf RETIRE~ENT

AGE PROVISIONS

Since the Equal Opportunity Act came into force, there have been a number of complaints received relating to the different ages at which men and women are required to retire within the same organisation. In all instances the retirement age of women has been lower than that of men, although there have been considerable variations in the age itself. In most cases, too, the particular retirement age has been tied to a superannuation benefit, or to the Age Pension, both of which are of course, exempted under the legislation.

Probably because of this exemption, there has been some confusion amongst employers about the way in which retirement age relates to the provisions of the Equal Opportunity Act.

Under Section lB ( l) (b)

18.{1) It is unlawful for an employer to discriminate against a person on the ground of sex or marital status --

{b) in the terms on which the employer offers employment;

As retirement age is part of the terms on which employment is offered to any individual, there little question that a uniform retirement age provision both sexes is a necessary requirement in order to conform to the legislation.

Fortunately to date, all organisations which have had complaints made against them in this area have been able to alter their policies to conform to the legislation with comparatively little difficulty. The main purpose of this Bulletin therefore is to outline the problems which have been encountered and how they have been overcome.

All complaints so far have been from women wishing to remain at \>lOrk longer - although they could also have occurred from men unable to retire as early as women. In most instances, too, the complaints have been related to particular circumstances such as the need for longer service in order to qualify for a particular benefit, or alternatively, unusual financial pressures. Most organisations in conforming to the Act have also expressed the view that they would prefer an earlier rather than later uniform retirement age and that

47

difficulties in changing are linked to superannuation provisions. In effect to date, three different approaches have been adopted by organisations needing to make changes in order to comply with the legislation.

Firstly, there has been the solution of leaving the two different retirement as they are, but removing the sex specific requirement. In practice has usually confirmed the existing right of men to retire earlier by utilising an early retirerr.ent provision in their superannuation scheme and so has made virtually no change in their existing position. For women, it has become possible by holding superannuation payments (with accruinq interest) over for the period they wish to remain in employment to enable them to do so. Once more this has created little disruption as women in general have preferred to retire as soon as relevant benefits have made it financially possible for them.

An alternative adopted by some companies has been to use the need to solve this issue as an opportunity to review all aspects of the retirement provisions and nat only restructure in accordance with the legislation, but also in conformity with future manpower needs and anticipated statutory requirements relating to non discriminatory superannuation. This has of course, produced wider effects varying with particular provisions and the sex ratio of the staff.

The final solution has been to make the male retirement age uniform for both sexes. This has usually occurred in practice when it has previously been below 65 and the company's policy has also been to favour applications for early retirement. Its effects therefore have not varied much from the optional retirement age scheme.

In each case of course, the solution adopted has related to specific factors such as the number of female employees in the business, the breadth of operations (beyond Victoria) and the preparedness of a company to undertake immediate major change.

In conclusion, it is important to stress that there has been no indication to date of major problems relating to the changes that have been required to conform to the legislation but that any discussion would be welcomed relating to uncertainties or problems experienced by organisations that could be required to make changes in order to conform with the legislation.

Fay Marles, Commissioner for Equal Opportunity.

48

Number 7.

A PERIODICAL INFO~TION BULLETIN ON ISSUES OF

CURRENT CONCERN TO THE COMMISSIONER FOR EQUAL

OPPORTUNITY

June 1980

THE USE OF SPORTING FACILITIES IN CO-EDUCATIONAL SCHOOLS

Parents, School Councils and Principals have all inquired from time to time concerning the exclusive use of school facilities for sport for one sex. In practice the immediate problem in most cases has been whether or not, girls should be permitted to play football at school. However, the issue is a general one and applies to any activity where one sex could be excluded.

Two sections of the Equal Opportunity Act are relevant to this problem and confusion has arisen in some instances by considering one without reference to the other.

The first relevant section deals with the provision of Equal Opportunity in co-educational schools and states that:

"25 (2) It is unlawful for an educational authority to discriminate against a student on the ground of sex or marital status

(a) by denying him access, or limiting his access, to any benefit provided by the authority;"

This would clearly suggest that no school activity or facility should be denied a pupil on the basis of his or her sex. Where the playing of sports is concerned however, Section 33(1) (a) must also be taken into account relating to general exceptions under the Equal Opportunity Act. This states that:

33 (1) This Act does not render unlawful

(a) the exclusion on the ground of sex or marital status of a person from any sport, game or other activity of a competitive nature organised for persons of the one sex or of another marital status; "

When considered together these two sections make the position relatively clear in most of the instances that have come to the attention of this office to date. Basically, there are three issues to be taken into account.

1. Section 33(1) (a) would suggest that there need be no restriction on organising a sport or game exclusively for boys or girls on their own, so that no major re-arrangements of the customary sex segregation in sporting activities is indicated. (On the other hand there is not particular endorsement of this form of organisation either).

49

2. General rules ~hat prevent one sex only from using particular facilities, or pursuing an activity in un-organised time could be cause for complaint under the Equal Opportunity Act. In this regard, the definition of discrimination is important in that it refers to the question of treating one sex less favourably than the other in circumstances that are the same or not materially different. This would suggest therefore that while it would not necessarily be cause for complaint that boys and girls could not undertake an activity together, it could be in contravention of the legislation if either were treated less favourably than the other in terms of the activities and facilities made available to them. Where this has become a significant problem in inquiries to this office has been in the availability of school space in free time to both sexes. Not only have there been instances of girls being banned from handling footballs or cricket equipment in the school precincts, but they have also on occasions been confined to a very limited space because of the proportion of recreation area reserved for the use of these activities at all times.

3. In the event of a rule requiring boys and girls to be segregated for either formal or informal sporting activities, complaints could be made if the facilities offered for on~ sex were significantly greater than those offered to the other. In practice to date, such suggestions have all related to greater resources being made available to boys, particularly in the major spectator sports. This has involved the provision of space, funds for travel, allowances for individual equipment and clothing and the allocation of teacher time. In all these areas complaints could occur from the parents of girls in relation to the denial of, or the limiting of access to benefits provided by the education authority.

It may be helpful to suggest ways in which problems in the area have been solved in some situations. At the primary level, some schools have allowed both sexes to play sport together, usually because of their small numbers, and this has, as far as 1 am aware, worked without difficulty and, of course, has eliminated any potential problems under the legislation. In the majority of schools, however, formal sport has been organised separately for boys and girls and the school grounds have been freely available for the use of both sexes during un-organised time. This also appears to have caused little problem and has operated within the provisions of the Equal Opportunity Act.

In conclusion, it is important to stress that complaints under the Equal Opportunity Act are made on the basis of specific problems and are individually conciliated. It is only possible, therefore, to give indications of the sorts of situations that could give rise to complaints and make suggestions as the way in which these might be avoided. With regard to specific situations, all enquiries to this office are treated in complete confidence and I would welcome the opportunity to discuss any queries or doubts that could arise from the need to conform to the legislation.

Fay Marles COMMISSIONER FOR EQUAL OPPORTUNITY

50

Number 8 August, 1980

A PERIODICAL INFORMATION BULLETIN ON ISSUES OF CURRENT

CONCERN TO THE COMMISSIONER FOR EQUAL OPPORTUNITY

INTERVIEWING PRINCIPLES IN CONFORMITY WITH THE EQUAL OPPORTUNITY ACT

Shortly after the Equal Opportunity Act came into force it became evident that interviewing methods in job selection could be a potential source of discrimination, and for this reason guidelines were formulated at that time.

Since then, requests have been made for more positive advice on desirable practices rather than mere guidance on how to avoid the pitfalls of the legislation. The suggestions that follow endeavour to provide the employer with the most effective means possible of gauging the suitability of applicants for job demands while still protecting the rights of applicants.

In conducting enquiries that range beyond formal work skills and experience there are several basic principles which must be kept in mind. The concern of the interviewer must be with the needs of the job itself and questions must be directed towards meeting these needs.

Many positions in employment involve aspects that make the life circumstances of applicants relevant to their work performance. obviously important to the employer to determine how work needs performance might be influenced by life experience.

experience or domestic Where this is so, it is

can be met and how work

However, when a personal question is asked to which the applicant takes exception it is often the case that the concerns themselves are quite legitimate but that unacceptable means have been used to meet them.

No applicants should object to being asked how long they would be able to commit themselves to a job, but a female applicant could take genuine offence at a questioning of her childbearing plans, even though this might well be directed towards satisfying precisely the same concern.

Questions such as this usually arise from the assumption on the part of the employer that childbearing is a factor most likely to affect length of employment. It is a poor question because it can lead to missing another difficulty which might give an incorrect impression of length of service.

More importantly, however, such a question is taking into account a woman's childbearing potential which, in effect, could result in her being treated less favourably because of her sex.

In circumstances where life experience may influence job performance the same considerations apply. Questions should relate to the needs of the job and be an invitation to the candidates to show how their own experience could relate to those needs rather than constituting an examination by the interviewer Of those elements in a person's life that might possibly be relevant. Almost invariably when this approach is taken the interviewer's preconceptions will cloud the issue and he will treat men and women candidates differently.

51

An example of this sort could be a job that requires a detailed understanding of a client population that is predominantly constituted of married women with small children. Here, the temptation could be to presume that motherhood would provide the best background and to frame questions accordingly, thus leading to discrimination against candidates on the grounds of both sex and marital status.

An alternative question could be asked of all candidates: "Is there any'thing you have learned from your own life experience that you consider would contribute to your performance in this job?" Not only would this clarify the issues addressed in the other type of questioning, but would provide qualitative information about the meaning of experience to the individual, the individual's sensitivity and also his or her learning capacity. It would also enable the person who had obtained an understanding of the meaning of motherhood through other means to reveal it. (In practice, I have found this question a particularly useful one in many situations.)

Financial need has, in a number of instances, been given as an excuse for discrimination against married women. It is lawful to consider a person's financial need in job selection. However, it is unlawful to use a person's sex or marital status for determining who has the greatest financial need.

Selecting candidates on the basis of financial need does, however, lead to the hazard of lower productivity because of selection being less job-centred and the aspects important to job performance receiving too little emphasis.

Also, because financial position is often closely related to sex and marital status, such selection considerations could involve actual discrimination or at least the appearance of it. A married woman could be ruled out of selection in comparison with a single woman on the assumption that she is financially provided for by her husband. In this case the married woman would have received less favourable treatment because of her marital status.

While the need to make questions job-centred is probably the most important single consideration in avoiding treating candidates differently, at least two other points should be emphasised.

Firstly, there is a need to have a single standard in regard to respect for a candidate's privacy. This seems self-evident, but there is, nevertheless, a tendency to consider certain questions as permissible to one sex but not the other because of different accepted sex roles. For example, to ask a man how he will manage his domestic life if he has a demanding job could be seen to imply that he has not got his family life under proper control. To ask it of a woman, however, would involve the presumption that such problems for her should be expected.

Finally, it is important to realise that it is a legitimate cause for complaint if the potential of a woman to bear children is taken into consideration to her disadvantage when she is being considered for a position. Questions aimed at determining a woman's maternity plans because of a specific job requirement have already been covered. Unfortunately, however, such questioning is often the result of a conviction that a woman who may have children some time in the future should be avoided as a potential problem in any employment situation. A selection decision involving these considerations will almost certainly be unlawful under the Equal Opportunity Act and should be recognised as directly discriminatory.

Fay Marles COMMISSIONER FOR EQUAL OPPORTUNITY

52

Number 9

A PERIODICAL INFORMATION BULLETIN ON ISSUES OF CURRENT

CONCERN TO THE COMMISSIONER FOR EQUAL OPPORTUNITY

SEXUAL HARASSMENT

October, 1980

Since the Equal Opportunity Act came into force in April, 1978, more than twenty women have complained that they have been subjected to sexual pressure in the workforce.

The situations have varied widely and so have their implications. They have all, however, been potentially serious and their incidence has increased considerably following some general publicity about sexual harassment earlier this year. Furthermore, the nature and extent of enquiries not leading to formal complaints has also been such as to indicate that undesirable practices could be more widespread than was originally thought.

The investigation of complaints has usually shown them to have had some substance although the problem in most instances had, prior to the complaint, been hidden from the employer. By identifying some of the issues associated with sexual harassment, therefore, this Bulletin is designed to help employers to identify and counteract the problem more readily.

Although the circumstances of complaints identified as sexual harassment have varied widely they have, for the most part, involved two common elements. Firstly, complainants have alleged that they have been subjected to some form of unwelcome sexual attention or demand in the workplace, and secondly, that by their non-compliance they have jeopardised their employment situation in some way.

The sexual practices themselves have included alleged verbal demands for intercourse involving threats of dismissal or demotion for refusal; offensive comments or physical contact on the job in situations where a complainant's only recourse has been to resign or appeal for help from an outside authority; and finally, the indication at selection that some sexual favours would be part of the job expectation and that agreement to this would be a requirement for gaining selection.

The job implications for complainants in these cases have ranged from a failure to be appointed, to dismissal or forced resignation, and in a number of instances there have been threats of reprisal for revealing what has occurred. Where the problem has been part of a continuing job situation, complainants themselves have presented a substantially similar reaction to their experiences. This has involved loss of confidence and severe anxiety or stress in women who, for the most part, have had a previous history of successful work achievement and stability. The resignations that have occurred also appear to have been the result of personal distress rather than of a considered judgement about the unacceptability of the work conditions.

On occasion, too, there has been an apparent lack of awareness on the part of management concerning the relative helplessness of women in these circumstances and the degree of pressure they have experienced to comply with the demands involved. Contributing to this has almost certainly been the private nature of these demands together with the fact that incidents have nearly always involved a complainant's superior. Complainants, too, have

53

appeared doubtful often of the outcome of an appeal for assistance against a supervisor or other superior in circumstances that would involve the acceptance of one person's statement against another's. Also, in several instances, those in authority have tended to regard the problem as a clash of personalities rather than the intimidation of one person by another.

In considering how sexual harassment relates to discrimination under the Equal Opportunity Act it is necessary to examine particular circumstances. Where appointments have been involved, for example, and sexual compliance appears to have been made part of the conditions of employment, Section 18(1) (b) of the Equal Opportunity Act could be relevant. This states that:

1118(1) It is unlawful for an employer to discriminate against a person on the ground of sex or marital status-

(b) in the terms on which the employer offers employment;"·

Where practices in the work situation have been involved, on the other hand, complaints have related more to Section 18(2).

"18(2) It is unlawful for an employer to discriminate against an employee on the ground of sex or marital status-

fa) by denying the employee access, or limiting access by the employee, to opportunities for promotion, transfer or training or to any other benefits connected with employment; or

(b) by dismissing the employee or subjecting the employee to any other detriment."

In these cases, women have complained that they have been placed under pressure or subjected to abuse because of their sex and that the reaction to this has detrimentally affected their benefits in employment or has resulted in their being dismissed or subjected to detriment.

The liability of the employer in situations involving the conduct of an employee is also relevant and Section 29(2) of the Equal Opportunity Act must be considered in this context.

"29{2) where a person acts in contravention of this Act on behalf of another person either as his agent or employee, the person by whom the act is committed and the person on whose behalf the act is committed shall be jointly and severally liable under this Aat in respeat thereof."

As the employer's attitude to the situation is obviously relevant in this context, it emphasises the importance of being aware of any undesirable practices that could have developed and of taking appropriate action once they have been identified.

In conclusion, it is important to stress that, on the whole, employers have reacted with strong disapproval when instances of sexual harassment have been made known to them. This Bulletin, therefore, is directed towards alerting those in authority to a problem that can be substantially invisible but appears nevertheless to be more prevalent than has generally been recognised, and which has serious implications both for the individual involved and for the general morale of the workplace.

Fay Marles COMMISSIONER FOR EQUAL OPPORTUNITY

54

APPENDIX 2 - SPEECHES, SEMINARS, RADIO AND TELEVISION APPEARANCES

Speeches Prahran Rotary Club United Nations Status of Women Committee Glenroy Technical School Parents Group Dandenong and District Personnel Group Australian Federation of University Women Eastern Suburbs Branch Australian Association of Social Workers Annual Dinner Australian Administrative Staff College St Leonard's College Senior School Melbourne State College First Year Students Essendon North Rotary Club Metal Trade Industries Association Luncheon Personnel Officers Group Luncheon Essendon Women's Action Group Chelsea Rotary Club Victorian Amateur Athletic Association Council W. D. Scott and Co Pty Ud, Management Consultants Liberal Party Luncheon, Wodonga Toastmistresses Association, Warrigal Branch Combined Independent Schools HSC English Seminar Coburg State College Melbourne State College Staff Members Liberal Party Meeting, Hawthorn Branch Principals Seminar, Xavier College Sunshine International Women's Year Action Committee Education Department Career Teachers Group Soroptomists Club Presbyterian Church Focus Group Australian Federation of University Women Careers Night, Wilson Hall

Radio and Television 3CR Interview Channel 2 News Seminars Rusden State College, Women's Studies Group Prahran College of Advanced Education, Women's Studies Group Latrobe University Legal Studies Course Human Resource Centre, Latrobe University Melbourne University Social Studies Course Trade Union Training Authority (3 sessions) W. D. Scott and Co Pty Ud, Management Seminars State Electricity Commission Australian Administrative Staff College Syndicate Session

55

APPENDIX 3 - COMMITTEE MEMBERSHIP Equal Opportunity Educational Advisory Committee (Convener, Research Sub-

committee) Equal Opportunity Advisory Council Co-ordinate Committee on the Status of Women Rape Study Committee Deakin University Council Tenure Committee, Deakin University Melbourne University Board of Social Studies Curriculum Review Committee Victorian Institute of Secondary Education Discipline Committee Inter-departmental Committee on Equal Opportunity

APPENDIX 4 - PUBLISHED ARTICLES AND OTHER PROJECTS

Published Articles Some Characteristics of Conciliation under the Equal Opportunity Act 1977, Oracle 1980, Monash University. Other Projects Kingswood College Self Evaluation (4 day study of co-educational school) Chairman, Session of Conference of Fifty Years of Social Work Participation in Film Production "Fair Go". Session Member Advanced Course 67, Australian Administrative Staff College

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APPENDIX 5 - THE EQUAL OPPORTUNITY ACT AND THE FAMILY

(Article reproduced from Equal Opportunity Forum No. 2)

"THAT'S A GOOD QUESTION" - THE EQUAL OPPORTUNITY ACT AND THE FAMILY by Fay Marles, Commissioner for Equal Opportunity Question: If the Equal Opportunity Act is aimed at improving women's conditions in the work­force and encouraging them to play a more active and responsible role, could it not also have the effect of endangering the family? The family is the primary unit in our society for which we have evolved as yet no satisfactory or acceptable alternative. If this question has any meaning at all there­fore, it is a very important one indeed. To answer it we need to consider three separate issues:

• How does the Equal Opportunity Act affect women in the workforce? • What aspects of family life are influenced by this? • What is the balance of gain and loss to the family altogether?

Fair Play The Equal Opportunity Act creates a framework for fair play. This is all it does. lt does not demand any policies towards women beyond giving them equal treat­ment when they put themselves forward. lt does not push women in any one direction. lt merely opens the gates to enable them to go in the directions they choose themselves. The changes created by the Equal Opportunity Act result only from removing in­justices and putting a stop to unfair practices which have been widely acknowledged to exist. Changes to the role of women have been happening, and with increasing speed, for ten years. The Equal Opportunity Act operates to enable them to happen with as little dislocation as possible and with a maximum respect for human rights. lt has come into the picture late as a much needed referee in a vigorous and well advanced ball game. Effect on the Family How does this affect the family? Of course, the changes that are occurring to women within the workforce affect the family very fundamentally.

• Many mothers with young children are now working • The birth rate is falling dramatically so that fewer women are choosing to

have children. • More fathers of young children are playing an active part in their upbringing. • More women are suffering from over-work. • Women who are not in the workforce are feeling put down in their traditional

role. • Traditional eating habits are changing -fast foods are becoming the norm. • Television has become an essential baby minder for children whose par­

ents are not home or are too tired to communicate with them. • Good housing, educational advantages, furniture, the car all now require

the income of more than one average breadwinner. • With each price rise, the family needs more. For most families, the extra

can only come from more paid work by women. The forces driving women into the workforce are far more potent than the greater equity in work conditions for women which are created by the Equal Opportunity Act. While these are important to facilitate the most effective flow of female labour, the Equal Opportunity Act is likely to have minimal effect on the strength of the

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flow itself. Women are being driven by needs far stronger and more pressing than those of fair play. The questionable conditions they are so often prepared to tolerate bear indisputable testimony to this. Opposing the Legislation At least as important as these issues are the implications for the family of trying to stem the tide by opposing efforts carried out under the Act to remove the un­fairness women suffer. Does the opposition suggest the operation of a double standard? Does it imply for instance that coercion is acceptable for married women but in­centives are essential for everyone else? Is it saying that the family can only be built on a foundation of social injustice? Is it saying that the role of homemaker and child rearer cannot compete on an equal footing with the attractions of the paid workforce? If we as a community are saying these things, do we need also to ask whether the family should change? Should it be made competitive in terms of rewards and attractions? Certainly, whatever its effects, the Equal Opportunity Act has only a marginal re­lationship to the whole problem. There is no evidence at all that it has either in­fluenced the birth rate or the flow of women into the workforce. Helping the Family Finally, can the Equal Opportunity Act help the family? This is probably the only question to which there is a clear answer. If the Equal Opportunity Act is effective, it will operate to increase the rewards overall to women in the workforce. The same financial goals will be achieved with less time away from families or alternatively, the same time spent in the workforce will result in greater remuner­ation. In either event, the family must benefit overall. Of course it could be argued, that greater rewards would operate to lure women further away from their family responsibilities. Experience however, does not bear this out. lt is the women who receive least for their labour and endure the most difficult conditions who are forced to work the longest hours to achieve the material goals that our society normally sets for the family. Part-time work on the other hand is more the prerogative of the skilled and professional worker. One final point is important in this regard. Working mothers have to make ar­rangements for their children in their absence. High quality child care is expensive and it is the women earning the least who make the least adequate and most haphazard arrangements. They are also the group under greatest strain who can contribute least to their families when they are at home. The incidence of physical and mental illness is highest amongst women in the lowest positions of the workforce. If the Equal Opportunity Act can operate in any way to reduce the pressure on this most vulnerable and exploited section of our community, it must in some measure be contributing to the protection of the family.

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APPENDIX 6- RESOLVING COMPLAINTS OF DISCRIMINATION THROUGH CONCILIATION

(Article reproduced from Equal Opportunity Forum No. 4)

RESOLVING COMPLAINTS OF DISCRIMINATION THROUGH CONCILIATION by Fay Marles Commissioner for Equal Opportunity

Under our legal system, the tradition of resolving disputes through an adver­sary system is well established. This leaves the conduct of litigation exclu­sively in the hands of the opposing parties. If they are unable to reach an agreement they can turn to the courts where the judge or magistrate, acting as an independent arbitrator, decides the case. To some extent, the concil­iation machinery established under the Equal Opportunity Act provides an alternative to the adversary system. Fay Marles has been Commissioner for Equal Opportunity for nearly three years and has had responsibility for the Victorian Anti-Discrimination Bureau since May 1980. In the following article she examines the nature and effec­tiveness of conciliation as a method for resolving complaints of discrimination including complaints which are outside the jurisdiction of the Equal Oppor­tunity Act

This issue features the conciliation team that now handles all complaints of dis­crimination referred to the Victorian Government lt seems an appropriate time, therefore, to discuss the nature of conciliation itself and what people may expect when they become involved in a complaint of dis­crimination. Since the Equal Opportunity Act came into force in 1978, more than 400 complaints of discrimination on the basis of sex and marital status have been received by the Commissioner for Equal Opportunity for conciliation. A comparable number of com­plaints of discrimination on other grounds have been made to the Anti-Discrimi­nation Bureau. While the techniques used in all instances have been similar, the success rate has varied markedly and the single most important factor in this appears to have been the position of the complainant under the law. Where, for instance, there has been an obvious contravention of the Equal Opportunity Act, the matter has usually been comparatively straightforward. But where the ground of discrimination has not been covered by the legislation or the problem has involved questions of jurisdiction or other difficult points of law, a change on the part of the respondent has been much more difficult to achieve and indeed, has cast some interesting reflections on the power of moral persuasion to change business policy. The Process of Conciliation In conciliation there are a variety of procedures and techniques that are effective under different circumstances and these need to be examined in detail. Procedures The normal procedure in our office is to write to the respondent after a complaint has been received giving an outline of the problem and expressing a wish to visit and discuss the matter. When this visit is made it usually takes the form of investigating the substance of the complaint and in most cases, of determining whether there are any grounds for believing discrimination could have occurred.

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Often, too, where such grounds are established, the eventual settlement is dis­cussed and provisionally agreed upon. In the course of such a visit it is common to be shown relevant documents and to interview parties involved in the situation. In a few complex situations an initial visit of this type has included individual or group discussions with as many as six people and has taken several hours. lt is usually, however, much more straightforward than this. Following the initial interview the complainant is invariably contacted with the in­formation concerning a proposed solution to the problem or, where facts are in dispute, with an invitation to discuss the matter further. In the latter instances, outcomes are very varied depending on the nature of the dispute and the alternative solutions considered possible. This is the point at which the conference between the parties is often helpful in clarifying issues and reaching agreement. Finally, there is the settlement itself. Most often this is a simple matter of offering an interview, extending employment, giving access to facilities, extending credit or some similar practical change, and there is no need for a formal agreement. There are, however, instances of agreements being reached which involve formal obligations on the part of both parties. In some cases these have been the subject of legally prepared documents while in others there have been statements drawn up by our office or the parties involved. In either event, written statements of the issues and the position of both sides have almost invariably played a significant part in more complex negotiations especially where there has been a conference between the parties. Alternative Procedures In a significant number of cases the normal procedure is either inappropriate or involves apparent hazards. Correspondence can play a larger part in country cases, for instance, although this involves the obvious risk of increased legalism. While nothing done or said in the course of conciliation can be used in a future hearing by the Equal Opportunity Board, there is often, nevertheless, a very real difference between what people are often prepared to say to each other and what they will write in a letter. This has led, on occasions, to a correspondence that has not been conducive to an informal agreement between two parties and it has made conciliation more difficult and protracted. For this reason, such procedures are avoided if at all possible. Often the nature of the written complaint makes it possible to foresee difficulties for the complainant in pursuing the matter and so more details are required. Com­plaints can also contain material of a kind that suggests problems beyond dis­crimination and so the information needs amplification or verification before it should be pursued. In these cases, the complainants are called into the office for a con­ference before any contact with the respondent is considered. This is especially important in cases where the nature of the allegation is such that the respondent is unlikely to admit it without the presentation of strong evidence or where an admission could involve possible proceedings under some other leg­islation. Complaints concerning some types of sexual pressure, for instance, may suggest police intervention and in any case, will almost invariably be denied unless evidence specific enough to be verified can be supplied. Often, too, complaints of sexual harassment may name an employee who could be at risk of being dam­aged by the allegation irrespective of the ultimate outcome of the inquiry. lt is important, too, to discuss a case with a complainant if there is a possibility of damage to his or her position resulting from outside intervention. In promotion cases, for instance, recourse to an outside body can suggest an unacceptable level of organisational loyalty, and if the complaint cannot be substantiated intervention

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may do more harm than good. lt is surprising, too, in this respect how differently employees can perceive this hazard and how an examination of their options prior to intervention can change their view of what they want to do. Referrals to the Equal Opportunity Board Finally, although at the time of writing only four cases of discrimination have been referred to the Equal Opportunity Board for a formal hearing, the procedures in this regard are of vital importance. Conciliation is a process of reaching agreement rather than determining culpability, so that when a settlement cannot be achieved, it is the Equal Opportunity Board which must decide whether discrimination has occurred. This is not the function of a conciliator. lt is the invariable practice in our office, therefore, to make both complainants and respondents familiar with the administrative procedures especially when the matter is one that involves the Equal Opportunity legislation. Both complainants and respondents, therefore, know their rights and obligations in regard to the Equal Opportunity Board during the conciliation process. In practice, many complainants are reluctant to become involved in formal proceedings and a Board referral is only considered with the agreement of the complainant, therefore, unless an apparent damage has been done to the respondent through the lodging of the complaint. Similarly, when the decision has been made to refer the complaint, the respondent has always been given prior warning as to the date on which the referral will be made and this has led, on a significant number of occasions, to an eleventh hour agreement. Conciliation Techniques In some instances the procedures adopted in conciliation can also be techniques in themselves for reaching agreement the manner of referring matters to the Equal Opportunity Board being a case in point. For the most part, however, tech­niques refer to the ways of working within the framework outlined.

Confidentiality We believe confidentiality is a basic requirement for successful conciliation in the discrimination area, and the negative consequences of the occasional publicity surrounding a complaint have confirmed this. lt is, therefore, observed as an in­variable rule in our office. A conciliator must get at the truth as a proper basis for a fair settlement and this often only becomes possible when both parties understand that what they say is not in danger of being used in another context. One of the greatest dangers in this regard is that of damage to a respondent's reputation. Basic to the art of conciliation is creating a situation from which both parties can emerge with their self-respect intact and their public image untarnished. This entails a minimum of accusation and recrimination combined with a recognition by both parties that the conciliator has a grasp of the situation as it actually is. When both sides accept the interpretation of the conciliator as to what actually occurred and its significance under the legislation, a settlement is relatively straightforward. However, the issue becomes far more complex when the information could become public. lt can then become relevant to either party to show how they have defended their position. Then the focal point is almost invariably the apportionment of blame and when that occurs, the likelihood of amicable agreement is correspondingly reduced.

Confidentiality does, however, pose some problems for the overall eradication of discrimination. There is no doubt, for instance, that publicising a case has a de­terrent effect on a potential respondent, at the same time as it acquaints potential complainants with their rights. 1t can, therefore, become a most powerful means

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of public education. In the Wardley case, for instance, it was not only potential parties to such a dispute that became involved. Many others saw relevance to their positions as the issue unfolded. This educational effect has often been used, therefore, as an argument against confidentiality in conciliation. Nevertheless, it does not alter the fact that if con­ciliation is to succeed privacy must be protected. Whether it is preferable for con­ciliation to be less successful or whether conciliation is indeed the most effective method of administration, are both real questions. Irrespective of this, in our own context as conciliators our aim must be to obtain settlements for parties to a dis­crimination complaint if we can, and we see success in this as our only proper goal. Advocacy While certain basic principles are common to all conciliation, the actual process of discrimination produces some distinctive characteristics in this area of work. Factors of particular relevance are the differences in power that usually exist be­tween the complainant and the respondent, and also the need to reach a settlement that takes into account the rights and wrongs in respect of discrimination. In this situation the person who is discriminated against is usually comparatively powerless and in fact, a complaint is normally only made when a person's rights for some reason are not protected by any other organisation. Should the conciliator form the view, therefore, that discrimination has, or may have taken place, a more active role is required in protecting rights and seeking solutions than is appropriate in some other forms of conciliation. Indeed, in many situations it is only by active pressure from the conciliator to ensure that a settlement is equitable or conforms with the legislation, that the victim of discrimination acquires any negotiating strength at all. lt follows from this that the conciliator's own view of the degree to which discrimination has taken place can largely determine the ultimate outcome in some cases. One frequent problem in our work is the way in which discrimination itself can weaken the capacity of the individual to cope by reducing his or her self-confidence. lt is sometimes necessary, at least in the short-term, therefore, to provide more active support than would be required in most other fields. lt is largely because of this that the interests of complainants are so often represented in their absence and individual negotiations play so much greater part in settlements than joint confer­ences. Indirect Involvement Fear of victimisation has been identified as a critical factor in a number of complaints that have come to our attention. Although the Equal Opportunity Act can offer protection where complaints fall within its jurisdiction, even then it is strictly limited to situations where unfair treatment can be substantiated by evidence. While it is often difficult, too, to estimate in advance what benefits will be derived from a formal complaint being lodged, there is usually little doubt about the negative reaction likely to be produced by an appeal to an outside authority. In many situations, indeed, a potential complainant's fear can be well-founded and their decision not to come forward can be readily understood. Here again the powerless position of the complainant has made it necessary to develop certain initiatives and techniques to counter this problem. These are bas­ically aimed at providing complainants with more effective means of undertaking their own negotiations. To date, the most useful tool in this regard has been the periodical circulation of information in the form of bulletins to employers and or­ganisations likely to be involved in the more common problems. As well as reducing the number of discriminatory situations, these bulletins have enabled complainants to settle matters internally by reference to their contents which explain how the

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matter in question could contravene the law. Indeed, it has been this growing prac­tice of helping people to fight their own battles that has been one of the characteristic developments of the work of our office to date. For this reason, counselling has become an integral part of the conciliation process. Increasingly, discussions and personal support to people enquiring about their rights have led to their attempting initiatives of their own. As a result, matters have been settled without formal outside intervention and the risk of antagonism has been minimised.

The Part Played by Trade Unions and Professional Organisations While lack of organised support often characterises complaints of discrimination, this is not always the case. Where a trade union or professional or community group becomes involved, the situation can be closely allied to the traditional industrial dispute. And in a number of instances these organisations have been prepared to settle the matter on behalf of their members and have in other ways taken an active role in ensuring the implementation of the legislation. For example, the RES I Permanent Building Society, the Victorian Employers' Federation and the Education Department have all distributed information from this office for the benefit of their members. The Australian Hotels Association has undertaken action in several in­stances to ensure that their members conform to the laws. Types of Cases Conciliation situations have been categorised in several ways. There are those, for instance, where the remedy involves policy changes with wide ramifications in contrast with individual instances of discrimination that have no general signif­icance. The risk involved in making a complaint can also be a critical factor and finally, there is the issue of whether a complaint needs to identify an individual in order to be conciliated. These different situations all involve variation in technique and types of settlement. Complaints with Major Policy Implications Where the remedy for discrimination has involved a large organisation in a major policy change, most cases to date have had several characteristics in common. No alteration of policy has yet been contemplated, for instance, without the company verifying its legal liability in relation to the Equal Opportunity Act, and the settlement reached has appeared to be in direct response to this. lt is not surprising, therefore, that success in this type of conciliation has been almost entirely confined to dis­crimination within the terms of the Equal Opportunity Act. Indeed, it would be fair to say in general that where a change of policy is likely to involve large and unpredictable outlays on the part of organisations, there has been a tendency to remain impervious to factors other than legal liability. On the other hand, such cases have been particularly easy to conciliate where the law has been clear and where senior executives have been familiar with similar leg­islation elsewhere. Negotiations have, nevertheless, almost invariably been protracted and it has been necessary to protect the complainant while these have been in progress. Settle­ments, too, have all involved a complainant in a continuing working relationship and there has been a need to negotiate the terms of this on an individual basis in addition to general policy issues.

Individual Problems The problem of the risks involved in making complaints has already been discussed and these are obviously the cases where conciliation skills are most necessary. The judgement as to the most appropriate approach and the sensitivity of that approach are both critical. Where this is particularly difficult, too, is in the case of the complainant who appears to have an exaggerated expectation of legal remedies

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and little aptitude for personal negotiation. In general, cases of this sort, both within and outside the legislation, have presented most problems and have had the least predictable outcomes. In many ways, this is also particularly serious as it involves the important issue of discrimination influencing the level at which an individual operates within an organisation.

Conciliation with No Identified Complainant There are a number of cases where no individual needs to be identified in con­ciliation and remedies here must be general and have many of the same char­acteristics as those where complaints involve major policy decisions, except of course, that there is no question of individual scapegoating. The majority of these cases are referred by the Equal Opportunity Board and have resulted in some of our most wide ranging changes under the legislation. The access by men to mid­wifery training and the provision of a protective range of clothing to a wide range of employees have both resulted from such referrals. Finally, the combination of the conciliation functions of the members of the Anti­Discrimination Bureau and the Commissioner for Equal Opportunity is likely to provide a unique opportunity in Victoria to measure the effects of legislation in the dis­crimination field. Not only does discrimination on different grounds involve a close similarity of issues and effects on individuals and organisations, but the techniques of conciliation are almost identical. lt should be possible, therefore, over the coming period to isolate with greater accuracy than in the past those differences in outcome that could be regarded as attributable to the power of legislation.

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APPENDIX 7 - RESEARCH PROJECT ON WOMEN AND THE WORKFORCE

Department of Social Studies University of Melbourne Commissioner for Equal Opportunity Department of the Premier

A STUDY OF THE DUAL ROLE OF MANAGING A HOUSEHOLD AND WORKING IN PAID EMPLOYMENT The reason for the Study The problem of "the double shift" or managing both a job and a family is a critical one for many women in the workforce. For this reason, the Department of Social Studies at the University of Melbourne and the Victorian Commissioner for Equal Opportunity are collaborating in a study aimed at finding out more about the exact nature of the difficulties that many women experience in connection with this. Questions to be considered will be:

• The different problems of full- and part-time work; • The problems involving small children; • The amount of help obtained from other family members; • The effect of illness on the family; • The greatest areas of stress; • The different patterns related to age, marital status or type of job;

and any other issues that may surface as the study progresses. The organisers of the study have asked for co-operation from Myer Melbourne in enlisting the interest and participation of women workers who have the sort of re­sponsibilities described. lt is hoped to obtain information from women with different sorts of family situations and different sorts of jobs and hours of work. The amount of time involved will be two interviews of about an hour each which would be arranged with each person either at Myer's or in their own homes if they would prefer it. In some situations, too, if the person were willing, her husband or other family member might also be asked to assist. Confidentiality will be guaranteed in this study with regard to individual particulars, although general problems could be publicised. No information obtained will be made available to Myer and if the study should be eventually published or lodged in a public place, any information that may relate to a particular participant will only be included with their permission. As the study could lead to a better understanding of the problems that many women have in undertaking outside employment, it could be of considerable long-term value. The study will be supervised and controlled by (Mrs) Cynthia Turner, Senior Lec­turer, Department of Social Studies, and (Mrs) Fay Marles, Commissioner for Equal Opportunity.

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APPENDIX 8- RELEVANT EXTRACTS FROM SECOND ANNUAL REPORT Problem of tasks requiring heavy lifting and physical strength One specific problem relates to the use by employers of Section 132 of the Labour and Industry Act (See Appendix 2) in order to exclude women from employment consideration when heavy lifting is required. This has also involved the refusal of apprenticeships. On some occasions the lifting requirement has been compara­tively trivial such as carrying packets of computer papt:r weighing 18 kilos. At others however, it has been very substantial and it would be unlikely that most women would want to attempt the lifting involved, for example, carrying a 60 pound wire rope up a ladder. The particular difficulty created by this provision however, has been that it has ruled out women from certain jobs where they could if they had the skills and strength to handle the weight lifting, make a particularly valuable contribution. One example of this occurs in Ambulance work, where in an emergency involving psychiatric patients, or women or children, the sex of the officer could be of importance to the calming or comfort of the patient. A second problem relates to the incidence of injuries involved in lifting heavy weights and the possible disadvantage in terms of employment for men who are not given protection afforded to women. In each instance where this problem has so far surfaced, inquiries have revealed a high incidence of workers' compensation cases particularly relating to back injuries, which would suggest short-comings in legis­lation aimed at protecting only certain groups, particularly as investigation has also indicated that the ability to lift heavy weights without risk of injury, appears to depend on a combination of strength and skill. The weight lifting provisions seem too, to have operated in practice as a substitute for actually testing weight lifting ability. While the need for particular requirements has been recognised by the employers involved, no assessment device beyond the Labour and Industry provision has operated even under circumstances when a failure in a worker's strength could endanger the public. Strength for instance has been suggested as a requirement for stretcher bearing, rescue after car ac­cident, and even for flying commercial aircraft, and yet in each of these situations, the disqualification of women and juniors from such activities, appears to have been the only statutory safeguard to ensure that operators with the strength required will be employed. Finally, there is the question of technology to substitute for weight lifting. Employers have indicated that technology is sufficiently advanced in many instances to elim­inate heavy lifting, but that its use is determined by the limits of what can be de­manded of employees, themselves. If restrictions on lifting were in operation for both sexes for instance, devices such as manual fork lifts could possibly eliminate many potentially injurious tasks. And this might well also reduce the reluctance of so many employers to consider women either as apprentices or workers in heavy industry and many other jobs requiring manual skills involving a degree of physical strength.

Problems of providing technical education for both sexes Because technical education has historically related far more to the vocational requirements of boys than girls the majority of technical schools in Victoria have been established as single sex institutions for boys. There is an increasing pressure to provide technical education for girls now, however, with the growing awareness by parents of the advantages that this provides to their daughters wishing to enter trades, and this basically has accounted for the complaints received. While too, the Education Department has recognised this need and is implementing a policy

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of conversion of technical schools to co-education, it is a complex task involving a number of issues. Fortunately, in the case of the complaints to date, it has been possible to reach an equitable solution through the provision of transport for girls to the nearest co­educational technical school in the short term at the same time as giving a high priority to the conversion of the local technical school to co-education. Even so, general problems may still exist. These involve the disadvantage to girls of excessive travelling time to a co-educational technical school pending conversion and the likelihood of the problem becoming more urgent because of the speed with which the employment situation for women is changing. Should complaints in this area increase therefore, it may be necessary to question the relevance of the currently accepted minimum requirement for conversion. lt could be argued for instance that the necessity of special home science facilities, prior to conversion is a questionable requirement under the Equal Opportunity Act, because these facilities are not considered necessary for boys and furthermore are not the educational advantages creating the pressure for entry.

PROBLEMS OF LEGISLATION At the time of the First Annual Report, several sections of the Equal Opportunity Act had posed problems in interpretation in some individual complaints, and while it was possible to suggest difficulties that could be general, there seemed too little evidence to do more than point to Sections that would merit scrutiny during the coming year. With the handling of 240 complaints under the legislation it is now possible to be more definite. In this Chapter therefore, those sections that have been identified as ambiguous or apparently operating contrary to intention will be discussed.

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SECTIONS OF THE EQUAL OPPORTUNITY ACT CREATING DIFFICULTIES IN ADMINISTRATION Section 3 (6) A reference in this Act to the doing of an act on the ground of sex

or marital status includes a reference to the doing of an act on two or more grounds that include, as the dominant ground, the ground of sex or marital status.

The difficulties in this section relate to the words "as the dominant ground". In a complex situation it is often almost impossible to determine in practice which of several factors is the most dominant in a discrimination situation when the absence of any one of them would be sufficient to change the outcomes. For example, a migrant woman could be experiencing discrimination on at least four grounds if she were to complain of receiving a disproportionate allocation of menial or dis­tasteful jobs or any other adverse treatment, because of obtaining maternity leave after only twelve months service. While her sex, marital situation, race and length of service might all be identified as essential elements in the situation, it could well be that while her sex is undisputably basic to the problem, yet if she were an Aus­tralian born woman, she would experience no discrimination. In fact almost every case involving a migrant woman has posed this dilemma and what has appeared critical in conciliation is whether discrimination on the basis of sex has changed the outcome of the situation irrespective of what other factors are also involved. Furthermore, in the case of migrant women in particular, the effort to determine which ground is dominant can in itself be denegrating to the complainant and con­tribute nothing to achieving the stated objectives of the legislation. Section 15 ( 1) The Board shall undertake programmes for the dissemination of

information for the education of the public with respect to-( a) The elimination of discrimination on the ground of sex or mar­

ital status; (b) the promotion of equality of opportunity between men and

women; and (c) any other matters relevant to the provisions of this Act.

This section has created difficulties during the year both because of the need for the Commissioner to incorporate education in the conciliation function and because of the incipient dangers involved for the Board in divorcing their educational pro­gramme from the knowledge generated by complaints. In practice, it has been possible to date to generalise about problems when referring matters for educa­tional consideration to the Board although particulars from specific complaints which cannot be disclosed, would often be useful in ordering priorities. In the research area however, it has not been as easy to integrate the functions within the terms of the legislation and where research has been pertinent to conciliation, it has on occasions not been possible to refer it to the Board. Further, this could pose in­creasing difficulties as a research design in any area will usually depend on the precise nature of the information required or the questions for which answers are needed. 1t is difficult indeed to visualise how research relating to discrimination could be divorced from the problems being exposed by the handling of specific com­plaints. Section 16 ( 1) A person discriminates against another person on the ground of

sex or marital status in any circumstances relevant for the pur­poses of a provision of this Act if on the ground of the sex or marital status of the other person the first-mentioned person treats the other person less favourably than he treats or would treat a person of the other sex or of a different marital status.

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(2) For the purposes of sub-section (1 )-(a) no account shall be taken of special treatment afforded to

women in connexion with pregnancy or childbirth; and (b) a comparison of the cases of persons of the other sex or of

a different marital status shall be a comparison where the rel­evant circumstances in the one case are the same, or are not materially different, in the other.

This section was mentioned in the First Annual Report as an area of possible dif­ficulty and since then a number of problems relating to pregnancy in employment have arisen. In general an interpretation of the Act regarding pregnancy as a char­acteristic of the female sex has lain behind the position taken in the conciliation situation. This has since proved to be in accordance with the Equal Opportunity Board's inter­pretation in a specific instance which has strengthened the position taken. However, in the event of this interpretation being overruled in any decision in the future, this section would once again pose difficulties for administration. The phrase "Special Treatment" has also created problems in that it has suggested that it could mean dismissal or other detriment The interpretation of favourable being implicit in the phrase "special treatment afforded" has been adopted but ambiguity would be removed if the legislation actually substituted "favourable" for "special".

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