Chris Hartigan, partner at law firm Herbert Geer, told SmartCompany the prosecution indicates the FWO has dedicated resources specifically to prosecute discrimination cases, which in part arises from Fair Work Act amendments which have included unlawful terminations and adverse actions relating to protected attributes like age.
“The interesting policy point that arises from the FWO prosecuting is that in every state and territory and at the Commonwealth level there are already discrimination laws in existence and discrimination commissions, so to an extent this is a duplication of the law,” Hartigan says.
He says there are some key differences between the FWO’s prosecution and other discrimination jurisdictions.
One of these is that generally the state and federal discrimination commissioners do not have the capacity to prosecute in relation to breaches of the law and instead they merely facilitate mediation, with the dispute then referred to state bodies like the Victorian Civil and Administrative Tribunal.
Hartigan says Fair Work Act changes in 2009 mean adverse action provisions have a reverse onus of proof that provides an advantage to the plaintiff that is not available in any of the state jurisdictions.
“Also if someone brings a complaint under the Fair Work Act you get into a conciliation very quickly; in my experience it can be from within a week of lodging a complaint with Fair Work Australia but in the conciliation jurisdiction it can take as long as a year,” Hartigan says.
“So in a sense what they are doing is shifting the market for conciliation complaints out of these other tribunals into the Federal Magistrates Court and we have seen this through private plaintiffs.”
Hartigan says there have been some attempts to try to make sense of the interaction between the state and federal discrimination laws and now this new emphasis on the FWO prosecuting cases.
“It does beg the question of why all these state and federal agencies don’t have some coordination between them,” says Hartigan.
“The Federal Government has another agency that deals with discrimination. So why are they funding two agencies to do the same thing?
“It does seem a bit wasteful of our taxpayer dollars.”
SmartCompany contacted Theravanish Investments but no response was available before publication.
Cara Waters is the editor of SmartCompany. Cara was previously a senior reporter at the Financial Times website FT Adviser in London and has also worked for The Sunday Times.
