Submission to the Senate Inquiry into the new Anti-Discrimination Acts


By Peter Strong . On 05-Jan-2013


COSBOA Submission to the Senate Inquiry into the Exposure Draft of Human Rights and Anti-Discrimination Bill 2012

December 2012

Small business people are not a group that should be vilified and blamed for things they have not done.
 
Small Business people should not be asked to do what is not possible.

Small business people should be given the same human rights as anyone else in society

We have provided a submission based on the changing nature of society, try the changing needs of people seeking employment and the changing approach to workplace relations and workplace behaviours for small businesses.

Our response is based on the facts that:
•    Small businesses are run by people.

  • The small workplace is inherently different from the larger workplaces where there are pay clerks, pilule OH&S advisors and other experts.  The workers in a small workplace have closer relationships with each other, and this includes the business owner.
  • As at 30 June 2011 some 96% of businesses were small, they employ less than 20 people.  These are the largest number of workplaces yet the systems aimed at workplaces are designed for the large workplaces.
  • The small workplace will consist of a group of people all earning a living. The owner of the business and the employees will all earn income from the business.
  • Small business people have a better relationship with their employees than to be found in larger businesses.  This reflects the fact that we work together on a day to day basis and rely upon each other for well being, income and health.
  • We have also used information from a recent report by The Australia Institute, “An unhealthy obsession”, that shows small workplaces to be healthier and less stressful that large workplaces.

The Need for a change
The need to combine the various pieces of legislation covering discrimination has been obvious for some time and the government is to be congratulated on undertaking this difficult task.  Combining various Acts into one should make it easier to manage, communicate and understand issues and processes.  Combining the Acts will remove complexity for any complainants and also for employers.  It should make the task of the regulator, the Australian Human Rights Commission, easier to manage and if completed professionally the impact on small business people should be limited to the very small numbers who transgress through discrimination.

Onus of Proof
The contentious area for small business people is the part that covers the onus of proof.  There is concern in the sector that a small business person may be forced to prove their innocence against a vexatious claimant.  There is also concern that an employer who does not have the skills to prove their innocence will be disadvantaged by the new process.

The move to shifting onus of proof only when the complainant has established a prima facie case is a step in the right direction.  Previously the employer was immediately assumed to be guilty until they could prove their innocence, now at least there is a need to show that an event has actually occurred and that a case may need to be answered.  This should save some small business people time and money, as well as alleviate stress.

There is still the issue that an employer is considered to be a non-human structure of some sort.  This may be true for larger businesses but is obviously not true for smaller businesses that are run by a person or two.  This process of moving the onus of proof does not allow for the rights of an employer:
•    who has English as a second language
•    who has a low education level
•    who is under stress and duress due to personal or business situations
•    has a mental health issue
•    does not understand the process they are facing
•    comes from a different cultural background.

It appears that the rights of a self employed person to natural justice will be removed once a prima facie case has been established.  This is wrong and a better way needs to be developed in the case of small business.

The Australian Human Rights Commission as a regulator
The AHRC is an august body with highly skilled and experienced commissioners and employees.  However the one area where we believe it needs to improve is its understanding of small business and its interaction with small business people.  The AHRC continues to view employers as institutions and not as people. We also do not believe they currently have the attitude and understanding needed to properly regulate this new process.

For example if an employee makes an accusation that the AHRC considers to have a prima facie case then the employer will be forced to prove their innocence.  The experience that we have with small business people over many decades is that it is a rare small business person who will be able to prove their innocence without employing legal advice.  This is a cost to the person that should not occur.  Our experience is that many small business people either pay a fine or pay an ex employee ‘go away’ money just so they can get on with their business not because they are guilty of any wrong doing.

We need a process that ensures fairness for all people involved and there needs to be checks and balances on the AHRC to ensure that their ideology and lack of awareness of the needs of small business does not disadvantage any person or groups in this process.

The reality of discrimination
We have a concern that small business people continue to be vilified and accused of behaviour that in the main does not exist.  Last year we understand that there was some 2,600 complaints made to the AHRC concerning discrimination and of these some 150 went to court.  When it is considered that there are over 2.5 million small businesses in Australia who employ some 5 million other people than the problem is not one that should be exaggerated, and certainly we should not be blaming small business people when over 98% of them are not doing anything wrong.

Any discussion around discrimination should always include a statement that the small business community is actually a group of people who employ other people from all groups and backgrounds and do so without problems or conflict except in a very small number of cases.  The AHRC exists for the small number of people who have been wronged and need assistance or compensation and do a good job in those few cases.

Small business people should not be vilified to meet the ideological need of a few people.  Reality is far better than what is communicated.  Examples of the AHRC’s lack of understanding about small business people can be found on their website.  Below we have copied some statements from the AHRC website with our comments in bold.  The first three statements are on a webpage with the heading “Help for Small Business”.

These responsibilities (of an employer) are set out in a range of Commonwealth and state and territory anti-discrimination laws – the goal being to protect people from unlawful behaviour. This statement asks a small business person to have the same skills, knowledge, time and resources as big business.  This asks a small business person to do what is not possible for one person to achieve.

A significant number of complaints received each year by the Commission are against small business, which reflects the unique working conditions that occur in many small business environments. This statement shows a lack of due diligence from the AHRC.  The use of hyperbole to vilify a group of 2.5 million people when the actual number of complaints is minute is unacceptable.

For instance, the potential for harassment to occur in the context of close working relationships, where employees are on familiar terms with each another, can be high. This statement is completely wrong.  The recent report from the Australia Institute states the opposite – “Interestingly, employees of small businesses report feeling more comfortable discussing work life and workplace issues with their managers than employees of medium and large organisations. This is likely to reflect the relative proximity of employees to the senior management and the capacity of management in small business to implement changes in response to feedback from employees.” Small business workplaces are better because of familiarity and closeness of the workers.

The AHRC website also offers some advice as follows:

Employers in small business should nominate themselves or a responsible senior employee as a discrimination or harassment complaints officer. This person should be provided with any training or resources offered by employer organisations, small business associations, industry associations, the Australian Human Rights Commission (the Commission) or state/territory anti-discrimination agencies. The general principles that apply to informal and formal complaint procedures should be observed.

This is plainly designed for big business. A small business person will not have the time or capacity to do this and most would not have even accessed the site or read this statement.

Under ‘vicarious liability’ the website provides the following “It is recommended that employers take the following ‘reasonable steps’ to prevent harassment and reduce their vicarious liability:” the website then lists seventeen actions that an employer should take.  The word reasonable seems to be misplaced as this is not a reasonable expectation of a small business person.

Further reading of the AHRC website shows a distinct lack of respect for the small business person. The website must change and become small business friendly and reflect reality not ideology if it is to be in any way a useful resource.

It is also worth noting that discrimination also occurs against individual employers but is not recorded or considered to be a problem.  If an employee abuses his or her employer with racial slurs or sexist comments it is the employer who may end up being fined under vicarious responsibility processes.  If an employee quits his or her job because he or she does not want to work for a woman or someone from a particular ethnic group then that is OK.  It will cost that employer time and money to find a replacement and train that person so the act of discrimination has created a costs as well as stress.  We cannot imagine an employee would ever be bought to task for discriminating against a person who employs them but we should make sure that there is fairness in the way any employer is treated.

Small business people need to have their rights protected in any process. COSBOA strongly recommends that the AHRC release a statement confirming that a small business employer is a person with rights and how they will ensure those rights are protected during any process they may instigate.  Without a strong statement from the AHRC we will continue to lack confidence in a process where our human rights are removed.

Ends

About the author

Peter Strong

  • COSBOA October Newsletter

    01-Nov Our October Newsletter is out! Check it out
  • Removing choice in superannuation funds only favours the fund

    24-Oct There is one good example of why we need independent directors on superannuation fund boards.  That
  • Small Business Should Receive 10% Commission on Superannuation Collected for Funds

    03-Oct COSBOA today called on the government to build on agreements between large retailers and the retail
  • COSBOA AGM, Council Meeting & Business Leaders Dinner – 25 October 2017

    19-Sep COSBOA COUNCIL MEETING & BUSINESS LEADERS DINNER 25 October 2017 Hotel
  • Historical MOU with Business Council of Australia

    29-Aug Last week we had a very successful Vodafone National Small
  • ALPs Access to Justice – it’s time to be nice

    14-Aug COSBOA today acknowledged the importance of the ALP’s legislation on ‘Access to Justice’ when
  • COSBOA Submission: Inquiry into Sunday Penalty Rates

    03-Aug COSBOA's submission to the Inquiry into Sunday Penalty Rates is below: Thank you for the opportun
  • COSBOA’s Cash Economy Submission

    02-Aug COSBOA provided a submission to the Standing Committee on Tax and Revenue who are conducting an inqu
  • COSBOA Communique – Business Continuity & CyberSecurity

    28-May Cyber Security, telecommunications failures, power blackouts, website failures, disaster
  • The Cyber Security Issue – COSBOA Council Meeting: 24 May 2017, Hotel Kurrajong, Canberra

    15-May   Cyber Security hit the headlines over the wee
  • Fairness in Competition Gets Ever So Close

    24-Mar COSBOA today congratulated the government on the approach to changes to Section 46 of the Competitio
  • SmartCompany: Let’s focus on the issues that unfairly affect women who run their own small businesses

    08-Mar Peter Strong's article for International Women's Day in SmartCompany: As a bloke I can only c
  • Save the Date: VODAFONE NATIONAL SMALL BUSINESS SUMMIT 2017: 23-25 August 2017

    02-Dec 
  • National Contract Fairness Day! It’s arrived

    10-Nov Let’s celebrate the coming of fairness – the start of better innovation,
  • Who pays for double dipping in paid parental leave?

    24-Oct There are several ways of working out who pays for the double dipping in paid parental leave (PPL).
  • Payment of invoices – Australia comes last

    18-Aug Australia has easily found itself in last place when it comes to paying invoices on time.  We come
  • Competition in the Boardroom – a play in one act

    11-Aug At COSBOA we receive all sorts and we were lucky enough to be sent a small business play that reall
  • Census 2016 – Embracing Change

    10-Aug The events last night with the Census should not be used to attack and criticise or indeed to make u
  • Communicate, Engage, Involve, Communicate – that’s what a successful pack of dogs will do.

    16-Jul The Greyhounds decision is a great example of decision making gone wrong.  Perhaps the decision was
  • Contribute to the Campaign

    10-Jun After the article in The Australian 
  • COSBOA Vodafone National Small Business Summit Registrations Open!

    27-May It’s exciting when the months of planning start to come to fruition and the registrations for the
  • Pay taxes, stop dodging, stop playing games

    11-Apr The CosBullet – Tax collection needs fixing Below is an edited excer
  • 29,000 people support the government’s decision on the effects test – let’s get back to business

    30-Mar Petition to be presented to Kelly O’Dwyer at 2.30pm in the Minister’s office in Canberra
  • The Thinkers Hub – A Small Business Poem

    01-Mar It was somewhere up the country in a town built from rock and scrub That they formed a little busine
  • Is Competition policy decided by a few mega businesses and their union?

    19-Feb The development of better competition policy in Australia is vital to our future.  It is vital for
  • Penalty Rates: Sunday, fairness & jobs

    27-Dec There is a lot of carry-on around penalty rates.  The ideologues of the left want this to be a wedg
  • Security remains an issue – alert not alarmed, vigilant not a vigilante

    14-Nov Small Business people and the nation’s security National Security Hot
  • Tax reform can be managed – see Howard

    12-Nov Tax reform can be managed as long as we are all part of the reform process. Tax re
  • How many duopolies does it take to change a light globe in an aged care home?

    17-Oct In all the debate about the changes to Section 46 of the competition legislation (and the weird over
  • Latest argument for NOT having an Effects Test is just as silly as all the others.

    23-Sep  Trigger warning – Some jargon,
  • The dominant few big businesses are yesterday’s economy

    15-Sep Congratulations to Malcolm Turnbull and commiserations to Tony Abbott. With the change of Prime M
  • Our Champions are under threat from greedy, vested, rich corporate and union muscle

    11-Sep In the world of politics and influence there are some basic facts,
  • Misleading headlines don’t help the cause

    10-Sep Recently I was interviewed by The Guardian about the Effects Test and I made the normal comments and
  • When it’s your money – the game changes

    05-Aug The recent focus on politician's allowances and expenditure reminded me of a story I heard some year
  • Shopping Centres still playing with the facts

    26-Jul Shopping Centre Council misses the mark – as always Recently the Shopping Centre
  • Peter Strong’s National Press Club Address – 1 July 2015

    01-Jul COSBOA's CEO, Peter Strong delivered an address at the National Press Club on Wednesday, 1 July 2015
  • Peter Strong to Address National Press Club

    23-Jun Our CEO Peter Strong will address the National Press Club on Wednesday 1 July 2015.  Australia curr
  • COSBOA Chair addresses Maltese Chamber of Commerce

    17-May COSBOA Chairman and CEO of the Real Estate Institute of Australia (REIA) Amanda Lynch was in Malta r
  • Can we regulate the regulators?

    17-Apr Now is the opportunity to get information to the Productivity Commission, and through them the gover
  • 2.5 million people deserve better

    21-Mar COSBOA is extremely disappointed that we will once again have a new small business minister. The sm
  • Submission to the Senate Inquiry into the new Anti-Discrimination Acts

    05-Jan COSBOA Submission to the Senate Inquiry into the Exposure Draft of Human Rights and Anti-Discriminat
  • The Year that was -2012 – and the Year that will be – 2013 an election year

    19-Dec Please see our review of 2012 and needs for 2013
  • NAB and COSBOA announce new secondment to enable greater collaboration

    14-Dec COSBOA is pleased to announce the secondment of Janett Egber from National Australia Bank (NAB) who
  • Simplicity in Legislation Creates Productivity

    20-Nov This is an article written by John Strong,
  • New Taxation Commissioner – what does it mean for the self employed?

    14-Nov The government has announced the replacement for Michale D'Ascenzo (a great small business supporter
  • Small Business Champion for 2012 – Ondina Gregoric

    04-Nov It is with great pleasure that the Council of Small Business of Australia announces Ondina Gregoric
  • Coles and Woolies – still bullies

    03-Nov Great
  • Small Business in Asia – an example

    28-Oct Examples of some businesses established by Jaquillard Minns in Philippines during the last 5 year
  • Asian Century? Small business people are there already.

     COSBOA welcomes the release of The Asian Century White Paper today by the Prime Minister J
  • Is there a sea change in the way small business is viewed and treated?

    14-Oct Is something happening in Canberra around small business?  There have been some significant changes
  • Join the COSBOA board and other members at the October dinner with guest speaker Minister for Small Business, The Hon. Brendan O’Connor and Steve Lewis from the Canberra Press gallery

    11-Oct Book the 30th of October for a dinner at the National Press Club where our guest speakers will be Br
  • Australian Livestock and Rural Transporters Association

    05-Oct The ALRTA are members of COSBOA and they,
  • No job is better than $15 or $24 an hour? How?

    03-Oct COSBOA has provided a submission to the Senate inquiry into the Fair Work Act and penalty rates.  C
  • Submission to the Senate Inquiry into Penalty Rates

     Submission to the Fair Work Amendment (Small Business – Penalty Rates Exemption) Bill 2012
  • Join the COSBOA board and other members at the October dinner with guest speaker Minister for Small Business, The Hon. Brendan O’Connor.

    18-Sep Book the 30th of October for a dinner with Brendan O'Connor and other members and guests of COSBOA -
  • A Carbon Tax Calculator in the language of small business people – cash flow!

    23-Aug Why do we need a
  • Peter Strong’s Address to the National Press Club on 8 August 2012

    22-Aug Thank you ladies and gentlemen and special thanks and acknowledgement to the Deputy Chair of COSBOA,
  • How to define a small business? (well firstly we are all people)

    16-Aug Just what is a small business?  We currently have a range of definitions by a range of government a
  • The 2012 Economic Forum, the Asian Century and Innovation

    15-Aug COSBOA has two representatives at the Prime Minister’s Economic forum to be held in Brisbane this
  • Big win for owners of small trucking businesses – about time too

    19-Jul Congratulations to the Australian Livestock and Rural Transporters Association