Dominique Allen

Behind the Conciliation Doors Settling Discrimination Complaints in Victoria

The vast majority of discrimination complaints do not reach a substantive hearing. Most are resolved through alternative dispute resolution (ADR), or withdrawn or settled prior to hearing; however, there is little publicly available information on the outcomes the parties negotiate prior to hearing. This article presents a study of settling discrimination complaints in Victoria based on interviews conducted with participants in that process. It explores the reasons why parties decide to settle rather than litigate, and examines what outcome complainants initially seek and what they ultimately settle for. Since many of the findings are consistent with earlier empirical studies, the article concludes by canvassing recent reform options that would address persistent problems with anti-discrimination law and improve its effectiveness in addressing individual complaints and wider discrimination.

Rethinking the Australian model of promoting gender equality

Examines the public law of gender and equality from the perspectives of comparative constitutional law, international law and governance.

Wielding the Big Stick: Lessons for Enforcing Anti-Discrimination Law from the Fair Work Ombudsman

Anti-discrimination law is enforced by a person who has experienced discrimination by lodging a complaint at a statutory equal opportunity agency. The agency is responsible for receiving and resolving discrimination complaints and educating the community; it does not play a role in enforcing the law. The agency relies on ‘carrots’ to encourage voluntary compliance, but it does not wield any ‘sticks’. This is not the case in other areas of law, such as industrial relations, where the Fair Work Ombudsman is charged with enforcing the law — including the prohibition of discrimination in the workplace — and possesses the necessary powers to do so. British academics Hepple, Coussey and Choudhury developed an enforcement pyramid for equal opportunity. This article shows that the model used by the Fair Work Ombudsman reflects what Hepple, Coussey and Choudhury propose, while anti-discrimination law enforcement would be represented as a flat, rectangular structure. The article considers the Fair Work Ombudsmans discrimination enforcement work to date and identifies some lessons that anti-discrimination law enforcement can learn from its experience.

In defence of settlement: Resolving discrimination complaints by agreement

Alternative dispute resolution (ADR) has become an entrenched feature of Australia’s anti-discrimination law, so much so that the vast majority of discrimination complaints are settled. There are many reasons to be against settlement but with reference to a study of the outcomes negotiated in discrimination complaints settled in Queensland, this article shows that there are valid reasons to be in favour of settlement, particularly when it results in systemic remedies which would not be obtained otherwise. The article concludes by presenting modifications to the existing complaint resolution system which would retain ADR while ensuring that the wider, systemic aspects of a discrimination claim are also addressed by introducing an institution with the power to enforce the law.

Voices in the Human Rights Dialogue: The Individual Victim and the Australian Human Rights Commission

During the 2009 National Human Rights Consultation, there was little consideration of the enforcement of human rights complaints or the role of the Australian Human Rights Commission in protecting human rights. Although the issue is off the government’s agenda until 2014, it is worth evaluating the National Human Rights Consultation Committee’s and the Commission’s recommendations about resolving human rights complaints. This article highlights the limitations of these models, based on the experience of resolving discrimination complaints, and considers how best to strengthen the Commission’s role in protecting and promoting human rights under a future human rights Act.

Major court and tribunal decisions in Australia in 2017

This annual survey of significant court and tribunal decisions in Australia in 2017 covers changes to the award safety net implemented through the 4-yearly review, including in relation to penalty rates and casual employment. It outlines developments in collective bargaining, focusing on agreement-making, protected industrial action, the good faith bargaining provisions and the rise in successful applications by employers for termination of agreements. A Queensland decision considering community pickets and the interaction between state peaceful assembly legislation and the Fair Work Act is also noted. Decisions on workplace discrimination show that the courts are still grappling with Fair Work Act provisions in this area, and taking divergent approaches. The survey also discusses a successful accessorial liability action taken by the Fair Work Ombudsman, which is significant for both internal and external business advisors.

Using empirical research to advance workplace equality law scholarship: benefits, pitfalls and challenges

ABSTRACT Legal scholars are increasingly attuned to the substantial benefits that can be derived from empirical and socio-legal scholarship. While drawing on the knowledge of legal insiders – such as legal practitioners, judges or academics – to critique and evaluate the effectiveness of law and legal reform is an established means of empirically evaluating legal impact, this approach can be particularly problematic in relation to empirical equality research, as legal insiders are unlikely to be members of the under-represented groups that are the focus of equality regulation, and are instead more likely to represent the majoritarian status quo. Drawing on two empirical projects conducted in Australia and the UK, this paper considers the benefits, potential pitfalls and challenges of undertaking empirical equality research in the workplace. Using an insider / outsider lens to facilitate analysis, it canvasses existing gaps in empirical equality law scholarship and considers how future research could address these limitations.

Consolidate, eradicate or vacillate?

Dominique Allen looks to the uncertain future of the Human Rights and Anti-Discrimination Bill.

Equal opportunity : dealing with employment discrimination

Experiences with the process of lodging a discrimination complaint with the Australian Human Rights Commission - issues surrounding confidentiality clauses in dispute settlement agreements.