ࡱ> fhe` Ebjbjss `<%&***8b,<&s22"1111111$3h 6Z22-2L!L!L!1L!1L!L!.0 t*N/1C20s2/g6 g6 00g60X|L!da522 vs2&&&*&&&*&&&  HUMAN RIGHTS and EQUAL OPPORTUNITY COMMISSION Same-Sex: Same Entitlements National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits ASU PRESENTATION PUBLIC HEARING 2.15PM WEDNESDAY 26 JULY 2006 JO JUSTO Mr President, Commissioner, on behalf of the Australian Services Union I extend our thanks and congratulations to the Human Rights and Equal Opportunity Commission for this Inquiry into Discrimination against people in same sex relationships: financial and work related benefits. We also appreciate on behalf of the Lesbian, Gay, Bisexual, Transgender and Intersex and Queer members of the Australian Services Union, the time afforded to us today, to place verbal submissions in support of our written submission to you. I would like to take this opportunity to acknowledge the incredible strength and commitment of the Lesbian, Gay, Bisexual, Transgender, Intersex and Queers members and officials of the ASU, otherwise known as GLAM who work very hard to educate all members to the rights of LGBTIQ workers and to end all forms of discrimination. It is my intention to focus on three (3) areas for the Commissions reference. These are To provide further examples of the denial of employment benefits to same sex couples; To identify difficulties faced by people wishing to negotiate rights and benefits for their same sex partner and families in AWAs (Australian Workplace Agreements); Provide examples of some of the rights that have been gained by the Australian Services Union and how they have been achieved and finally, We will present recommendations to the Inquiry for further action. The Australian Services Union also acknowledges that there are many other areas of employment benefits and rights where equality for same sex couples and opposite sex couples does not exist, such as taxation, Medicare and superannuation, and to that end we support all of the Union submissions received by the Commission and those today. I have also outlined the purposeful focus of our submission today. Our written submission, along with our presentation today, is based on an industrial understanding of our bargaining and campaigning abilities rather than an analysis of a multitude of individual issues. We believe that whilst there does not exist (within the federal system) a strong and openly spoken set of legislative protections, employees will be reluctant, in any numbers to come forward on issues of workplace discrimination on the basis of their sexual preference or partner status and therefore significant data or stories are limited. Until such time as all employees are educated to the fact that regardless of legislative provisions, such rights belong to all employees not just those in opposite sex couples. With that education and strength in bargaining, only then will we see a substantial change. There are certainly a number of individual matters around the country that have been resolved, on behalf of members, usually through financial settlement and the employee ultimately seeking new employment. Whilst there is a vacuum of legislative rights and a cone of silence, until now, on these issues major breakthroughs on mass change in employment benefits has been reliant directly on the workers bargaining strengths. The areas of employment benefits I will focus on are Carers leave; Parental leave, including maternity, paternity and adoption; Bereavement leave; Access to annual leave; Unpaid leave Whilst speaking specifically about what I would prefer to call employment rights rather than benefits in the federal jurisdiction it must be acknowledged that employment rights in the State jurisdictions are better supported in legislative terms and therefore positive results are a little more common. One outstanding issue across all spectres of this debate is the use of gender based language. The history of the terms he and she in the Award system, have historically not been challenged in a range of arenas and instruments. This has led to a cut and paste phenomena in industrial instruments which has led to further discriminatory practices by default rather than purposely. The denial of rights/benefits to same sex couples in the federal system is underpinned in the Workplace Relations Act at Section 3 sub-paragraph (m) Principal Object which states: respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibility, pregnancy, religion, political opinion, natural extraction or social origin And (n) Assisting in giving affect to Australias International obligations in relation to labour standards. Unfortunately these principal objects are not reflected in the body of the Act. Whilst carers leave now reflects the ability to take leave for a member of a household, there are no other positive benefits. Employees access to all of these forms of leave is predicated on the employee being required to give some form of information to the employer in order to have the leave approved, or there is the requirement for the provision of medical certificates to support the carers or bereavement leave. This raises a sundry issue for employees if they have not been able to find a supportive medical practitioner or due to costs, are reliant on the public health system and their local service (possibly for religious reasons) will not provide appropriate paperwork, introduces a whole new level of discrimination. So as an example a woman employee who has not disclosed her relationship status in the workplace requires carers leave and as it can be imagined for any other individual there is no requirement for discomfort of concern on disclosure, for a person not out in the workplace for an enormous range of reasons backed in most cases by likely fear, this poses a significant problem. It is also particularly a problem if there are no provision within an agreement or other instrument that give guidance to the employer that it is something they must do, not one they can make judgement on. Employees wishing to take annual leave or join the Christmas roster, or indeed deal with school holidays in an environment where due to numbers of employees, rosters, or allotment of holiday ballots take place, are often reluctant to step forward and identify that they have parental obligations and need to participate in the school holiday scheduling. If there was a legislative benchmark or right given and that was reinforced with the strength of a collectively bargained agreement then an employee should feel no fear in coming forward and be able to engage in balancing their work and family life. The provision of Parental Leave allows for a range of conditions for employees and where a strong union collective agreement has not delivered members of same sex couples will be denied any form of access to leave with the exception of Carers Leave. As previously mentioned this is one area where without analysis of the benefits to be provided the simple use of gender based again language only adds to the difficulties in gaining access to what should be be either the primary care giver or the secondary care giver. At this point in time, generally there are no provisions for women to access paternity leave or for men to access any part of paid maternity leave. I will provide examples later of agreements which provide various levels of support to same sex couples in parental leave clauses. Bereavement leave also delivers the same challenges for disclosure in the workplace without any form of instrumental protection. Attempting to attain bereavement for the loss of your partners parent becomes extremely difficult if not impossible for you. If you have not disclosed your status in the workplace, if your status is not embraced and accepted in the workplace. Then you are less likely to ask for such a right in a regime of the quick dismissal. The difficulties faced by people attempting to negotiate any of these and other rights in their workplace are contingent on a range of matters. The industrial instrument which underpins their employment Any policies or procedures in the workplace and The culture and environment that exists As we have represented the industrial instrument affectively now in the federal system is the workplace relations act, we have identified its lack of ability to afford protection to employees who identify as being in same sex relationships or as a couple. We have also identified what continuing difficulties there are in place for employees who, as same sex couples wish to participate in union collective agreements and the education, and foundation for building strength which needs to be in place to gain good outcomes is not reflected in what happens for individual employees faced with the prospect of negotiating an AWA or individual contract with their employer. Clearly negotiations are concluded successfully on the basis of their being a reasonably fair balance of power, this can be gained in a number of ways collectively but for the lone employee, this is an almost impossible, dangerous, and preposterous task. As per our previous examples there are a range of matters that you would want to have included in your AWA. I should state at this point that the Australian Services Union does not support in any way the notion of individual negotiations as the pathway to achieve the best results either for the individual, the business, the industry or the economy in general. Collective bargaining is engaging in the certainty that peoples rights will be addressed and fought for. So as the individual facing their employer under the new regime of industrial laws, they affectively have one alternative accept the AWA as the employer presents it to you or look for a job elsewhere. Unless you come from mighty strong stock and have skills that no employer can do without, you are faced with accepting conditions which have to lawfully meet the Australian fair pay standards a minimum of 5 conditions which in no way reflect the objects of the workplace relations act, which in no way reflect any of the international labour obligations we are obliged to follow and the individual is forced to take it or leave it. For a number of members of the LGBTI community this can then be multiplied in its detrimental affect by facing reversion to the social security system if they are unable to accept an AWA which for example limits their access to sick leave substantially (they may have HIV/Aids or related illness) or they may need to care for a partner with a significant illness and without the ability to negotiate those conditions into their agreement they would be forced to look for work elsewhere. The introduction of the welfare to work bill will further discriminate against them as they cannot force an agreement to contain provisions to deal with their status as a same sex couple they are then forced to be dependant on the welfare system which will punish them with a minimum penalty of waiting for benefits for 8 weeks as a result of rejecting an unfair AWA. Clearly there is no favour in the individual system for negotiating working conditions and benefits, and even if an individual was in such an amazing position that they could, the employer is not forced to comply as there is no legislative bottom line or safety net. Most people are law abiding, if the law doesnt tell them then, they are open to influences which may not offer the best interpretation on rights for same sex couples. I have with me for the Commissions interest some agreements, both post Workchoices, both the private sector and those of companies who have large profits and mediocre employee relationships. These agreements have been collectively bargained. As a result of employee education in the matter of maternity/paternity/adoption and carers leave these agreements reflect positive outcomes for same sex couples in some employment provisions. The ASU has several other such National agreements. In the instance of the Canon agreement whilst the definition and the intention of the definitions are not seen as specific the companys policy is supportive and the parental leave is far from ideal however the company offered in positive steps to remove the gender specific language. Within the Regional Express agreement there exists the same issues of the merits or otherwise of the overall parental leave clauses and (there is potential for much improvement), however the use of gender specific language has been removed and the claim is to ensure access regardless of couple status or definition. I have provided these two (2) examples to show that even though variations of entitlements for same sex couples can be included in agreements there is much opportunity for employers to use such provisions as leverage in negotiations and as such inferior clauses can be the result. In a different environment where the employer has an clear understanding of human rights and obligations and where employees have strength and solidarity, the potential to deliver excellent results is possible. I provide for the Commissions interest a copy of the Amnesty International Agreement which is a pre Workchoices agreement and is the result of strong negotiations. It contains a terrific Parental Leave clause was one of the many good results. The same considerations could be applied to all types of gender or couple status identifying clauses in agreements. Employees are endlessly denied access to the same rights in industrial instruments as heterosexual couples. When there is no requirement or obligation on any of the parties to protect the rights of all, ultimately unfortunately the majority will not. The ASU strongly supports, therefore that this Commission work to influence changes which would include: Ensuring all provisions of the Workplace Relations Act 1996 reflect the stated objectives; That the Federal Government be pursued vigorously to make legislative changes removing all forms of discrimination against same sex couples; And further that the Commission work to assist the parties during the next phase of negotiations on the definitions relevant to the Family Provisions Test Case. In summary employees are denied access to a range of employment benefits afforded to heterosexual couples including carers leave and bereavement leave and through definitions of family/partner etc. Maternity/Paternity/Adoption Leave or partner/spouse definitions and gender specific language in all levels of individual instruments deny rights to individuals, partners and families. Access to rosters for holidays whilst not necessarily legislative based also reflects another avenue for heterosexual superiority. Employers are not forced to ensure that all types of families are considered, and they should be. AWAs are a scourge in the employment landscape for any employee regardless of sexual preference. Clearly the ability for employees to accept inferior conditions or show them the door in effect displays the little hope employees in a same sex relationship will have in negotiating these rights. We applaud Human Rights and Equal Opportunity commissions Inquiry, we look forward to assisting the Commission further and encourage the Commission to take up on recommendations made by the Australian Services Union for action. 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