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Re Federated Municipal & Shire Employees Union of Australia (WA Division)
Australian Industrial Relations Commission
Riordan SDP
Unreported, 31 January 1995
Print F1323[MO221]
by Loretta de Plevitz
In January this year, Senior Deputy President Riordan of the Australian Industrial Relations Commission handed down this decision, which has far-reaching implications for Aboriginal workers. In granting an application by the Federated Municipal and Shire Council Employees Union of Australia (which has since amalgamated with other unions to form the Australian Municipal and Clerical Services Union of Australia, or the ASU) to vary the Municipal Employees (Western Australia) Award 1982, an industrial commission has recognised for the first time in this country that due and proper respect should be given to the cultural and spiritual beliefs of Aboriginal workers.
The purpose of the ASU's application was to obtain for its Western Australian Aboriginal members working in local government the opportunity to gain access to a proper career path without their employment prospects being impeded because of the obligations and duties which attach to their religious practices. The most important claim was in relation to that for adequate bereavement leave, though parenting leave and a paid holiday for the National Aboriginal and Islander Day of Celebration (NAIDOC) also formed part of the application.
The ASU argued that the only way change in the workplace could be achieved was by including these claims as clauses in the Award: any infringement could be then enforced as a breach of the Award. Employers on the other hand proposed that a Schedule of policy statements and guidelines be annexed to the Award as statements of good intentions. (This Schedule is set out in full on pages 4-7 of the decision.) They argued that joint cooperation between the ASU and employers, rather than prescription, was more likely to eliminate discriminatory practices and attitudes in the workplace.
Nevertheless, there was no divergence in principle between the ASU and employers about the need to recognise Aboriginal religion and culture in the workplace: the only disagreement was how this should be done. The dispute between the parties was not resolved by conciliation, and the matter was referred to arbitration.
The employers sought a hearing of the dispute before the Full Bench of the Australian Industrial Relations Commission. A party may apply to have a dispute dealt with by the Full Bench where the subject matter raises an important matter of public interest: s107(2)(a) Industrial Relations Act 1988 (Cth). The ASU opposed this on the grounds that its case 'would be severely impeded because Aborigines were very apprehensive about giving evidence in formal proceedings in the atmosphere of a court on account of their experience in courts in Western Australia' (page 2). It was decided by the President of the Commission, pursuant to ss107(10) and (12) of the Industrial Relations Act, that-Riordan SDP be directed to investigate, take evidence and report on the matter.
Relying on the powers in sslll(1)(j) and (s) of the Industrial Relations Act to sit at any place and to summon any persons considered by the Commission to be helpful in the hearing or determination of a dispute, Riordan SDP, 'with the least possible formality' (page 2), took evidence around the state from Aboriginal people, workers and local councils, as well as from anthropologists and the Deputy Chairperson of the Council for Aboriginal Reconciliation, Sir Ronald Wilson. Informality was necessary, Riordan SDP said, to be able to properly appreciate the circumstances surrounding Aboriginal employment in local government. He noted that as the investigation went on, more Aboriginal persons became more readily available to give evidence.
The Senior Deputy President was obviously shocked by what he found. He referred to recent curfews in country towns and active discrimination against Aboriginal people seeking work. He expressed as an unspeakable outrage against fairness and decency the fact that some Aboriginal people have to live in storm water drain pipes (at page 23). He deplored the difficulties of people trying to participate in the workforce when they lived without facilities in substandard or no accommodation.
From the evidence Riordan SDP found Aboriginal workers to be good employees, eager to learn and willing to undertake training and to follow a' career in local government. They were capable of success if given reasonable opportunity. Though some local councils, notably the Shire of Derby, West Kimberley, were making laudable efforts to recognise and accommodate Aboriginal cultural and spiritual beliefs, there was little other evidence of employer effort to affirm Aborigines' rights to practice their culture. A number of councils had not even discussed the issues despite it being 18 months since the application had been filed.
Evidence (as if it were needed!) was taken from anthropologists with regard to 'certain prejudicial attitudes towards aboriginal [sic] persons to be found generally in the community' (page 12).
The Senior Deputy President accepted Sir Ronald Wilson's submission in full as evidence because it was uncontested (submission reproduced on pages 8 to 11 of the decision). Sir Ronald referred to the goals of the Council and the importance of achieving reconciliation in the workplace. He stated that these could be facilitated by increasing the participation of Aboriginal people in the workforce, and by educating other Australians about their rich cultural traditions and history. As local government is at the 'grassroots', as well as being a major employer and the most visible of governments in Australia, he stated it could set an important example in establishing standards for reconciliation.
The fundamental issue to be decided by the Commission was whether recognition of Aboriginal employees' religious and cultural beliefs by local government should be mandatory or only permissive. Riordan SDP acknowledged the importance of the Council for Aboriginal Reconciliation's submission that there was inherent 'systemic discrimination' in Western Australian country towns (pages 10-12). He found that though local government statements of good intentions may have been made in good faith, there is a 'strong possibility' that these may not suffice: a positive requirement to observe Award conditions is necessary (page 12). He held that the Award should be varied to include leave entitlements which were congruent with Aboriginal workers' cultural and -religious beliefs. To support the entitlements, appropriate dispute resolution procedures should be put into place.
Riordan SDP acknowledged that prescription may be onerous and a disincentive to employ Aboriginal workers (at page 13). Here one only need recall the widespread sackings of Aboriginal pastoral workers in the late 1960s after they were brought under the pastoral Awards. At that time John Kerr (later Sir John Kerr, Governor General of Australia), counsel for the pastoralists, had argued that Aboriginal workers had a different cultural attitude to work, and therefore on 'sociological' grounds they were less efficient and should be paid less than their white workmates. Prior to being covered by the Awards, what was termed the Aboriginal 'cultural need for walkabout' just happened to coincide with the quiet season in the pastoral industry, thereby removing at one fell swoop the employers' double burden of holiday pay and benefits accruing under a continuous employment contract.
In the present application thee local governments proposed that, as part of enterprise agreements, terms of the Award could be varied by the parties themselves to take account of 'cultural needs'. The ensuing agreement would have the same force as an Award. This was rejected by Riordan SDP as 'open to gross and serious abuse' (page 21). He gave as his reasons low union membership of Aboriginal workers; the existence of Aboriginal employer associations where people worked for unemployment benefits only with no Award coverage; and the opportunity for local government to contract out of Award obligations.
As the crux of the matter before the Commission was not so much the actual leave entitlements but that the practice of Aboriginal religious and cultural beliefs should not be a bar to employment prospects and promotion, Riordan SDP placed great importance on the inclusion in the Award of a general duty on employers (page 14):
'An employee, covered by this Award, who is an adherent to Aboriginal culture and who practices Aboriginal spiritual and/or religious beliefs, shall be afforded a reasonable opportunity by his or her employer to follow and practice the requirements of that culture or spiritual or religious belief'.
Riordan SDP believed that because of its wide application, this general duty would have a marked effect on the employment relationship.
As for bereavement leave, it was accepted by the Commission that when a person dies his or her spirit requires the attendance of kin. Because of insufficient evidence before the Commission about the type or length of absence required, and because of varying distances to the funeral place and time spent waiting for other relatives to arrive, the duration of leave would depend on individual need. As for the frequency of leave, the extended Aboriginal family, the large kinship network, and the tragic fact that Aboriginal workers will be attending more funerals of their age peers because of their premature death rate, meant that Aboriginal workers would require bereavement leave more often than other workers. Riordan SDP held that as it was not possible to draft a relevant clause with any specificity, bereavement leave would be considered as part of the general Award duty. This leave could be taken either by using annual leave entitlements, accumulated rostered days off, or by leave without pay. The employer may of course require evidence of the need for leave. Adoption and maternity leave were to apply in a manner consistent with cultural practices.
In relation to the NAIDOC holiday Riordan SDP held that if an extra holiday were granted to Aboriginal workers this would cause friction, in direct contravention of the ASU's objectives of creating harmony in the workplace. The holiday could be taken in lieu of another specified public holiday, to be agreed between employer and employee.
As regards training, clause 6 of the Award would provide that when Aboriginal persons are engaged, they are to be given appropriate induction and training which includes recognition of their culture. Any dispute over leave entitlements would be referred to conciliation by the Local Industrial Board. If that failed, then the parties would proceed to the Commission for variation of the Award or an order. However in any matter requiring dispute resolution, Aborigines would be entitled to be represented by a person of their choosing, who may be another employee. On this issue Riordan SDP referred to evidence from an anthropologist, Professor Tomkinson, that in Aboriginal society 'very often it is not your place to speak for yourself' (page 16. As with other anthropological evidence one may wonder whether the model described is not an extrapolation from one particular observation to all Aboriginal societies).
Another major issue was who the Award provisions would apply to. Riordan SDP noted (at page 18) that two-thirds of the Australian Aboriginal population are of mixed descent and there may be varying degrees of adherence to cultural and religious beliefs. However, in relation to bereavement leave, Professor Tomkinson gave evidence that the beliefs are strongly held by many or most Aboriginal people, including those in urban areas (at page 20). To over-come the possibility that employers may be required to assess the degree of an employee's beliefs, the Deputy President decided the most appropriate definition was identification as an Aborigine both by the worker her or himself and by the Aboriginal community. By doing so he avoided the 'genetic material' issues recently raised by Drummond J when interpreting the electoral qualifications in the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (see Neil Lofgren, 'Defining Aboriginal Identity: Gibbs v Capewell & ors' Vol 3, 73 Aboriginal Law Bulletin 18).
Though the ASU had made other claims (not specified in the decision), Riordan SDP believed it was better to work towards reform on a gradual and selective basis. He acknowledged the possibility of resistance to too much change at once. He ordered that the Local Industrial Board meet monthly to review the operation of the variations and to give advice and assistance to local government.
At present there are very few Aboriginal people actually employed in local government in Western Australia, and this decision runs the risk that by adopting a prescriptive approach, employers will be even more disinclined to employ Aborigines. Nevertheless labour history illustrates that it was only through legislative intervention that major changes came about in industrial relations. As for the effect of the variations Riordan SDP himself said (at page 24):
'There is a fine line to be drawn between indifference and intolerance. The variations to be made to the Award are intended to make a contribution to the acceptance and recognition of the rights of employees to practice their cultural and spiritual duties without loss of employment rights. To make such provision is not to afford special treatment to one class of employees. Rather, it is to afford a proper recognition of equality'.
(Refer also [1996] AUIndigLawRpr 14; (1996) 1 Australian Indigenous Law Reporter 32 for a full copy of the text of the decision.)
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URL: http://www.austlii.edu.au/au/journals/AboriginalLawB/1995/65.html