A legal-equitable perspective of the “right to work” of migrant professionals with the government of Australia.

 

By Nicholas Ni Kok CHIN

 

Introduction:

 

In 1983, the Access and Equity Strategy introduced by the Hawke government, provided bureaucrats with the responsibility in Australia to focus on clients and their rights.  This means every Australian taxpayer has a right to access all government services including employment. Migrants after two years of permanent residence are offered citizenships and the right to vote, which leads to their participation and their consequent representation in a democratic Australia.  Since the post-war Assimilation Policy for migrants did not mean equality for migrants, the Integrationist Policy replaced this outdated policy in the 1960s.  By 1975, migrants began to organize themselves, which culminated in the formation of a unique peak body called Federation of Ethnic Communities' Councils of Australia (FECCA) in 1979, which played a leading role in establishing multiculturalism in Australia. Although there were still pockets of recidivist racism[1] remaining, the majority of Australians believed in the important concept of giving migrants a fair go.[2]

 

Migrants do not have a fair go:

 

There are many instances of professional migrants not having a fair go in Australia.  A study[3] indicates that many “migrant teachers expected to be discriminated against and 30% of them cited racism as a cause for their not being able to find work.  It also found that 33% of those, whose qualifications are recognised were denied the first rung of their career in teaching,” in the State of Western Australia.  This made them claimed, “deliberate discrimination” by the State Department of Education. The statistics show that only “6% of all teachers employed in the Department are of non-English speaking background and out of 39 respondents who had been found acceptable, only one is in permanent full-time work.”

 

Specific example of a migrant teacher:

 

The victim, a migrant teacher through a 12-year period of an invidious means of discrimination finally became the subject of a blatantly false accusation of the crime of indecent dealing.[4] His case was prognosed in the media[5] as a victim of race-hate who had been irreparably traumatised because of the uncertainties he underwent during his pre-trial period - there was a very real danger of him being convicted for a crime he did not commit at the time.[6]  Sad to say, he found that there was no remedy available for him in the West Australian criminal justice system after the night-marish trial and acquittal.[7]  The sequel: he was banned in a non-appealable and therefore void administrative decision[8] from working as a teacher.[9] But that situation was only partially redeemed by the incoming Minister for Education who would allow the victim to return to teaching, conditional upon his completing a full year’s service with another employer[10]. The Minister’s hand was tied, as the then Chief Executive Officer of that Department, Mr. Peter Browne, had taken a wrongful[11] decision, which could only be negated in a court of law.  Subsequently, as a result of the victim’s court action, there was an elaborate and repeated striking-out process, although the victim was allowed to replead each time.  Logically, when a claimant is allowed to re-plead a claim, there could be no real “strikeout” of that claim[12].  Consequently, the costs of the misnamed “strikeout” should not fall on the shoulder of the victim but should have been  “costs in the cause”.  The purported misapplication of the striking-out principle resulted in what the victim believes to be an erroneous, albeit an aberrant discretionary order of costs by the Supreme Court of Western Australia against the victim. The hapless, tireless victim was helplessly tired-out, and he therefore sought a compromise.[13] 

 

The matter was finally settled and he lost his “right to work” as a consequence of his inability to fight a David-Goliath tussle with a government department.[14]

 

Is multiculturalism still alive in multicultural Australia:

 

Multiculturalism is the avowed public policy of the Australian government in recognising and respecting the migrants’ own value system, and the encouraging of their diversities rather than assimilating them into the general population.  The government, is moving towards the empowerment and inclusion of migrants into the social fabric of Australian society.  Why is reality far different from policy? [15] 

 

This policy is supposed to be managing the consequences of the diversities of the various groups in Australia, in the interests of the individual and society as a whole[16].  It is supposed to be reinforcing the social, cultural and economic benefits of the nation's diversity and ensures that it (multiculturalism) remains a positive force for Australia.[17]  The West Australian government expressly allows the coexistence of many cultures, without any one culture dominating the region.[18]  It is avowedly making the broadest range of human differences acceptable to the largest number of people and consequently, it is seeking to overcome racism, sexism, and other forms of discrimination.[19]  Yet, a department of that government, as described above, is very visible in doing just the opposite. 

 

Neutral employment practices can be discriminatory:

 

Employment practices of government departments, though neutral on their face, can have an “unjustifiably exclusionary effect on protected groups.[20] This form of discrimination (disparate impact discrimination doctrine, or indirect discrimination or adverse impact discrimination), though an American innovation, has remained a controversial issue in the U.S.[21] It is however, prevalent in the international scene, wherever there are migrants of diverse ethnicity as this idea has been favourably received by many Western legal systems;[22] it has “survived very well in the international marketplace of ideas amongst common-law countries”, inter-alia, Australia.[23]. It refers to an unvalidated (as opposed to an invalidated) device used by a government department that disproportionately excludes a protected group (e.g. migrants on account of their ethnicity or race) unless such a device adopted is job-related. 

 

 

 

Discriminatory conduct may be unintentional:

 

The conduct of administrators in government departments, “though fair in form can be discriminatory in operation”.  This is irrespective whether the discriminatory conduct is intentional or invidiously motivated.  Whenever the administrator “use testing mechanisms or procedures not connected with measuring job capability, the absence of discriminatory intent alone will not redeem her conduct”.  Whenever such disparate impact occurs, it is incumbent upon him to show that such requirements are “job-related and governed by principles of business necessity.”[24] This indirect discrimination is logically extended from the concept of unfair exclusion of migrants. Whether or not such exclusion of migrants is wrongful, could be surmised from the facts available in each circumstance:

§     Whether the current unintended exclusion of migrant groups (when compared with the prevailing historical circumstances affecting their exclusion as a protected group) is a current reflection of a deliberate discriminatory policy of the government.

§     Whether forces of necessity could understandably justify the current unintended exclusion of the protected migrant groups.

 

As a corollary, it can be said that where migrant groups are excluded - unintentionally - and there are no logical explanations for them; it then becomes clear that the bureaucrats had, through deliberate and elaborate planning processes had caused and are responsible for a reprehensible wastage of human resources, which are ever present in our nation;  such resources could be derived  from a ready pool of professional migrants who are highly skilled in their respective areas of expertise and are specially selected for their skills as migrants into Australia.

 

Anti-discrimination laws in Australia:

 

In Australia, anti-discrimination laws (including those affecting indirect discrimination) were passed at both the state and federal level since the mid-1970s. They were modelled after those of the U.K. The notion of indirect discrimination, however, was not embraced in all Australian jurisdictions as it was only included belatedly in bills or amendments as a result of intensive lobbying from women's organizations and administrative agencies.[25]  Now, all Australian legislatures have incorporated the notion of indirect discrimination into their anti-discrimination laws.  In some, only simplified definitions have been enacted, but in others, broad definitions of discrimination including both disparate treatment (direct discrimination) and disparate impact (indirect discrimination) have been implemented.[26] 

 

Both of Australia's Racial Discrimination Act, 1975 (Cth) and Sex Discrimination Act, 1984, (Cth.) were specifically enacted in order to implement Australia's obligations under the Race Convention and Women's Convention.[27]  The theory in Griggs referred to below about disparate impact discrimination was incorporated into them and this idea has now become a legitimate definition of discrimination, which is now beyond challenge in Western Europe and internationally.  The Australian Constitution drafted in the 1890s, is clearly deficient in anti-discrimination ideas as it was drafted in a then prevailing legal-philosophical climate of arid positivism.  Effectually, it does not contain a Bill of Rights.  Moreover, attempts in the 1970s and 1980s to amend it to include more extensive rights-guarantees had failed.[28] Anti-discrimination legislation in the Australian States and Territories now prohibit discrimination on a wide variety of grounds, including race, ethnicity, sex, disability, age, religious belief, and sexual orientation. The structure of the legislation is such that the concept of indirect or adverse effect discrimination applies equally to all grounds, without distinction.

 

Implications of disparate impact or indirect discrimination:

 

In Australian Iron & Steel Pty. Ltd. v. Banovic,[29] the High Court held that the "last hired, first fired" criterion had a disparate impact on women employees in that it was unreasonable because its operation serves to perpetuate the effects of the company's past discrimination against women. The plaintiffs were given “constructive seniority” in service for future purposes and awarded a total sum of damages in excess of $A1 million.[30]  It may thus be imputed that the “seniority systems” of a government department that have a disparate impact on protected groups of employees like migrants - who have many years of experience overseas - are open to challenge whether such disparate impact arises as a result of past discrimination or current exclusions.

 

Griggs v. Duke Power Co., recognized devices adopted by a government department that are developed with only a dominant group in mind are likely to have an exclusionary effect on migrants who do not share the characteristics of the dominant group. Thus, facially neutral practices of a government department, far from being protected from scrutiny, should be subject to examination for possible disparate effects. Only in this way will anti-discrimination legislation be able to tackle the full range of discrimination that exists. This point is given serious attention by our Australian legal systems. Australia unlike the United States together with an “impressive array of foreign and international legal institutions” have concluded that Griggs is not folly. Disparate impact theory is widely accepted as a crucial element in Australia in providing substance to “statutory, constitutional, and international promises of equality.”[31] 

 

Migrants’ Right to Work:

 

Migrants who are denied their right to work are effectively being “denied their citizenship rights as surely as they are denied the right of free speech and the right to vote.” If this right to work is not made a human right for migrants, then that portion of the Australian polity will be permanently excluded from the effective economic participation in the community.[32]  There should therefore be a statutory right to work in Australia and locally the State of Western Australia should be bearing the responsibility of its implementation. Citizens’ access to work should not be made conditional so that full employment in the economy could be achieved, thus guaranteeing price stability for consumers.[33]

 

Employment, a fundamental human right can be established either as a natural right or through a “pragmatic, instrumentalist approach” by using factual experience and analysis of outcomes derived from those experiences[34]. 

 

The Universal Declaration of Human Rights does include, inter alia, the right to work.  Both the United Nations and the International Labour Office have ratified the right to work with the 1946 ILO Declaration of Philadelphia asserting full employment as a national and international goal.[35] The right to work has gone only as far as being replicated in international legal instruments.[36] Many countries are either unwilling or unable to mandate such a right or codify and enforce any human rights for citizens.[37]  So the right to work is a “non core right” that should be left to individual countries to enforce or to be interpreted in the context of rights of work.[38], Article 6 of the ILO incorporates the right to work, in the context only of the right of those in employment. Yet, in most industrialised countries there is no legislation on the right to work[39]. Employment rights seem to be narrowly interpreted as encompassing the rights of those in employment and excluding any rights for those who are unemployed.

 

Work should be regarded as a right because labour income is the staple of the majority of households; and without it, their involvement in a market economy is minimized. Access to income also governs access to other rights, including minimum requirements of clothing, food and housing.

 

A right to work means those who wish to do so should be able to obtain paid full-time (or fractional) employment. This guarantee of a right to work should be made by the State and it should be legally enforceable in much the same way as other rights. It should not be confined to any work designated by the State. Those exercising their right to work should be given options as to the type of employment they wish to take up. They should be paid minimum adult rates of pay and be accorded the same rights and conditions associated with full-time market employment (or pro rata) -- holiday and sickness benefits, a safe workplace, protection against unfair dismissal. They should they be employed for as long as they wish while satisfying the standard conditions of employment. Those exercising this right could regard guaranteed jobs as a temporary step towards higher paid employment in the market sector.

 

To neglect either national or international consideration of the right to work enables unemployment to flourish across the globe. The ILO recently renewed international commitment to full employment to reverse the poverty, unemployment and underemployment now prevailing in so many parts of the globe[40] The OECD recent recommendations excluded any consideration of a right to work.[41] A right to work is the precondition for eliminating unemployment and its enormous costs and consequences. However, it is clear that such a right will not be accorded the status of an internationally enforceable obligation. However, if the right is enshrined in Australian law this will mean that governments will be legislatively forced to redress the issue of unemployment. Thus the federal government will be obliged to develop and implement a full and effective employment policy.

 

 

Unemployment of migrants:

 

Unemployment amongst migrants is either due to their voluntary choice or the rigid structure of the West Australian economy and labour markets.[42]  Thus unemployment problems for migrants could be resolved if “minimum wages were abolished, industrial relations deregulated, benefit assistance tightened and the size of the government sector reduced.”[43]

 

Unemployment for migrants has ramifications on their families and their communities. Their families may break up, there may be alienation of their family members; discrimination, illness or death, substance abuse, truancy and non-completion of schooling, and poverty may also result.[44] The costs associated with unemployment of migrants are “the loss of their current output and the associated fiscal burden, the loss of their freedom and consequent social exclusion, their skill loss and long-run damage, their psychological harm, ill health and mortality, their motivational loss and future work, their loss of human relations and family life, their racial and gender inequality, loss of social values and responsibility, and organisational inflexibility and technical conservatism.”[45] Additionally, migrants could be involved in petty crime, ghettoisation and inherit unemployment and poverty from their parents.  Their social and economic exclusion facilitates their anti social behaviour and fosters the growth of illegal activities as a means of generating income.[46]

 

Remedies for neglected migrants:

 

If a government department administrator by representations of words or conduct led migrants to believe in a certain state of affairs, it is precluded by the rule of evidence of promissory estoppel from denying the truth of such assertions.  This is especially so if the migrants had changed their positions in reliance[47] upon such representations to their detriment.[48]

 

When the administrator stood by and kept silence when she observed migrants labouring under a mistake of fact; when it could have spoken out in time to prevent such a misapprehension or mistake from occurring; such omissions or commissions could result in migrants relying on the doctrine of equitable estoppel to bring about a claim against that government department. Even so, the government department may still resile from its promise on giving reasonable notice so that the migrant could get a reasonable opportunity of resuming his former position by refusing to migrate.   However, that promise only becomes final and irrevocable if the migrant can no longer resume his former position.

 

Duties and obligations of government employer towards professional migrants:

 

The government employer should not punish its employee twice for any infringement of its rules: Nemo debet bis puniri pro uno delictor. It must exercise its statutory powers honestly and in good faith, fairly and not capriciously, and it cannot exclude judicial review of proceedings that is founded on fraud.

 

When acting as a tribunal and arriving at a manifestly unreasonable decision it may not necessarily have exceeded its jurisdiction but it may be held to have done so if the unreasonableness is a consequence of its having taking irrelevant considerations into account, failing to have regard to relevant considerations or addressing itself to and answering the wrong questions. Similarly, a decision reached without any supporting evidence at all is not per se outside its jurisdiction but it may be so characterised for the same reasons. The decision made by the administrator of a government department must be based on evidence having probative value[49] The courts will not necessarily be ready to measure every administrative act by a yardstick of reasonableness. It must observe rules for fair adjudication.  For instance, he shall not be a judge in his own cause nor condemn a migrant employee unheard and must always give reasons for his decisions. Prima facie, a duty to act judicially[50] will arise in the exercise of a power to deprive the employee of his livelihood.[51]  Professional migrants have a legitimate interest and expectation to be employed[52] and if they are refused employment, the government employer must be prepared to give them a hearing and provide reasons for their refusal.  It must give fair consideration to the facts and must consider representation made by persons directly concerned with the matter. Its hearing must be conducted openly, fairly and impartially and fairness means abstention from abuse of discretion. It has a duty and an obligation not to capriciously, arbitrarily and unreasonably deprive the migrant of his common law right to work in his chosen profession.[53]  (This common law “right to work” is well-received into Australia.[54])  Its decision must not be suggestive of any prejudgment of the issues.[55] Professional tribunals should not condemn on a balance of probabilities[56] but is duty bound to prove a case on the criminal standard of proof. 

 

Employees are not required to do what is impossible and therefore cannot be penalized for not carrying out their duties faithfully when the task assigned to them is rendered impossible by design: Nemo tenetur ad impossible. Administrators taking decisions shall not have any pecuniary or personal interest in the case she tries. Nor must he depart from standards of even-handed justice[57] required of administrators who holds judicial or quasi-judicial office.  She must not be placed in situations where there is a likelihood of bias nor must he decide on issues where she has already indicated partisanship by expressing opinions. Migrant employees have a right to work as a proprietary right[58] without being arbitrarily and unreasonably excluded by anyone having the governance of it. It shall not make a policy, which enables it to reject migrants’ employment, arbitrarily or capriciously and not reasonably, as that rule is bad and against public policy[59].

 

Burden of proof when claiming discrimination:

 

For litigant-migrants to make a successful claim, they need to discharge their burden of proof. There are two burdens of proof[60], which vary at any one time in the different stages of the trial. The legal burden remains constant throughout the trial.  The incidence of the legal burden on different issues may lie in different places at different times in the trial and issues may rise or fall according to the facts proved.[61]  The claimants will have to establish facts supporting their arguments and at the conclusion of the trial, if they fail to discharge this burden to the appropriate standard usually on a balance of probability in a civil case, they would have failed in the action.[62]  This burden is usually clear from the pleadings.  The golden rule is that the burden of proof always falls upon the one who asserts the truth of particular facts. [63]

 

The evidential burden may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage of the trial.[64]  This burden rests upon the party who would fail if no evidence were given at all.  The burden will initially rest upon the claimant bearing the legal burden but as the weight of evidence by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence.[65]

 

Where the truth of a claimant’s allegation lies peculiarly within the knowledge of the government department, the burden of disproving it, often lies upon the latter.[66]  However, the incidence of the burden of proof may be determined by agreement between the parties in civil cases.[67]

 

Right to work and contractual nexus:

There need be no contractual nexus between the migrant and a government department for enforcing a common law “right to work” [68].  This principle is founded in the English case of Nagle v Fielden, referred to above.   Lord Reid in another English case [69] said that in any dismissal from an office, though casual or temporary, there must be something to warrant the employee’s dismissal.[70]

 

The audi alteram partem rule is applicable where migrants are deprived of membership of a professional or social body according to an English principle of law regarding natural justice[71].   Where an equivalent situation exists in Australia where professional migrants are being denied of their right to work, Jessel M.R. could not be very far from the truth when he reiterates that natural justice as it then existed in the 18^th century is still alive today, and it requires the aggrieved migrant professional be heard.[72]   

 

Fiduciary relationships between the State government and the community:

 

The most fundamental of fiduciary relationships in our society is that which exists between the community (the people) and the State and its agencies[73].  In Australia, a line of decisions beginning in 1875[74] and reaching the High Court, have affirmed the nature of the fiduciary who is the public officer of a government department or one who has the status of a member of parliament.[75]   Thus, the State Government of Western Australia itself is recognised as a trust for the West Australians.[76]  As a corollary, the fiduciary relationship existing amongst partners is akin to the relationship that exists between an administrator of a government department and a migrant professional employee of that department. They respectively owe each other mutual obligations of trust and confidence between themselves similar to the relations between partners.  Each employee/employer is an agent and at the same time, a principal for the other.  

 

Categories of Fiduciary relationships:

 

There are six categories of circumstances where one party is a fiduciary and the other a beneficiary but the respective roles of the parties in the fiduciary/beneficiary relationship may be reversed.  This reversal of role depends on the circumstances of the particular case. However, this list of fiduciary relationships is non-exhaustive.[77]  A professional migrant employee of a government department is admitted as a fiduciary when performing his duties as an employee.  However his employer could also play the role of a fiduciary, as it is keeper of the public trust for the Australian polity, if it uses employment practices and policies, which are clearly discriminatory.   They are public officials working as agents for a government department and holding public property in trust for the people and as such could be charged with corruption[78] as well as being subject to civil action for the recovery of gains made in breach of their public trusteeship.[79]

 

As said earlier, the courts have on numerous occasions stated that the categories of fiduciary relationships are not closed.  In Australia the fiduciary principle can still be seen as a proscriptive principle.  This means it does not import a connotation of positive duties on the part of the fiduciary to the beneficiary but rather is concerned with the maintenance of loyalty and the fiduciary principle is activated whenever a fiduciary seeks improperly to advance his own interests or the interests of others he chose to favor, in or as a result of the relationship.  To be denoted a fiduciary; a migrant employee, whether in his capacity as a corporate body or as Member of Parliament, is thus exposed to the full range of equitable rules that are associated with that position.  Shepherd[80] notes that the duty of loyalty is the essence of the fiduciary relationship between its citizen and the State.[81]  

 

Loyalty and Fiduciary relationships:

 

The process of finding the existence of a fiduciary relationship is the process of finding the existence of a duty of loyalty owed by one person to another. The administrator owes professional migrants a duty of loyalty that, as a member of the West Australian community, they should be treated alike, like any other member of the community, irrespective of whether they are migrant-professionals or locally-born citizens of this State. 

 

Jurisdiction of the WA Supreme Court:

 

The WA State Supreme Court is a superior court with unlimited jurisdictions.   It has an original jurisdiction to hear all civil and criminal cases.  A judge of that Court may scrutinize and review through a branch of the constitutional law called the administrative law the functions and decisions made by administrators of the departments and agencies of the State government.  The concept of ministerial responsibility of the government department requires that every action of a public servant be the action of the Minister and the Minister is therefore responsible to Parliament for the conduct of that Minister’s department.   This proposition forms the basis of the review of administrative decisions and that each review be carried out in accordance with administrative law, which is that body of principles and rules that state and govern the functions and powers of all those public servants and agencies of government.  This branch of the law deals with the judicial and extra-judicial review of the actions of administrative authorities[82].  

 

Judicial Review by the Supreme Court:

 

By judicial review of an administrative action, a court reviews the legal propriety of the actions of the executive.  It is concerned to establish whether correct procedures were followed and whether the law was correctly interpreted and applied.  Despite its inadequacy, judicial review may indirectly allow the merits of decision to be reviewed on the grounds of[83]:

 

§        “Unreasonableness” - to render a decision ultra virus in being so unreasonable that no reasonable person could be expected to have taken it;

§        Regard to irrelevant considerations or no regard to relevant considerations.  The burden is on the administrative decision maker to show that the decision was based on relevant considerations.[84]

 

 

Organizational Justice[85] in a government department:

 

Migrants working in a government department expect various types of organizational justice that may affect their attitudes towards their employers and their behaviours in the workplace:

 

§        Distributive justice focuses on the perceived fairness or equity as the relevant standard by which fairness is determined by migrant professionals of outcomes.[86]  This means that employees, who are migrant professionals, ought to receive outcomes consistent with the quantity and quality of results they produce through their performance.  Effectively this means that the first employee terminated in a layoff should be the lowest performers.  Whenever migrants perceive that this internal standard had been violated, the result is low distributive justice.  They may therefore respond to it by showing anti-social behaviours like employee theft and sabotage.  In order to restore their sense of equity they may resort to discrimination claiming and other antisocial behaviours.

§        Procedural justice[87] focuses on the perceived fairness of the procedures used to determine outcomes by migrant professionals and the implementation of these procedures by the department.[88] Migrant employees are more willing to accept the unfavourable outcomes if they believe the procedures that resulted in the unfavourable outcome were fair. Employees value procedural justice as a social norm because it is considered as morally appropriate.  A violation of such norm is considered subversion and could therefore be procedurally unjust. Such unfair treatment may result in revenge episodes.

 

§        Voice justice posits that migrant employees value the opportunity to have their opinions and positions heard within an organization. Conversely, any procedures that deny voice justice were viewed as procedurally unfair.

 

Conclusion:

 

The General Conference of the International Labour Organization,[89] considered the Declaration of Philadelphia, which affirmed that all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity. [90] It considered that discrimination is a violation of rights under the Universal Declaration of Human Rights. 

 

It defines discrimination as:

 

§        Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;

 

§        Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organizations, where such exist, and with other appropriate bodies.”[91]

 

It is not discrimination if any distinction, exclusion or preference in respect of a particular job is based on the inherent requirements of the particular job.  Employment and occupation include access to vocational training, employment and particular occupations and terms and conditions of employment. The signatory countries undertake to impose a national policy for the purpose of promoting appropriate methods of equality of opportunity and treatment in employment and occupation, so as to eliminate any form of discrimination. Further, they undertake to seek the co-operation of employers’ and workers’ organizations to accept and observe this policy, to enact legislation and promote educational programs for this purpose. It is not a discriminatory practice to make measures against anyone suspected of engaging in activities, which are prejudicial to the security of the State.  Special measures designed to provide special assistance or protection to meet particular requirements of persons for reasons such as sex, age, disablement, family responsibilities or cultural status are not deemed to be discrimination.

 

 

The policy makers and legislators in all countries with ethnic minority or migrant populations including Australia should be guided[92] to develop affirmative action programs so as to actively promote migrants equal participation in the labour force.  The International Labour Organization (ILO) is constitutionally obliged to protect the 'interests of workers when employed in countries other than their own'[93]. Traditionally, this has been done through the elaboration, adoption and supervision on international labour standards,[94] and in this way they change not only legislation but the actual practices as well. The ILO standards concerning migrant workers are their non-discrimination or equality of opportunity and treatment. Many countries broadly observe this objective in the economic and social spheres. Others ratify the ILO Conventions or standards[95] and tried their best to fulfil the obligations derived from it. Contrary to expectations, discrimination still exists in these countries at workplaces in private or public enterprises.  In response to this, ILO has a global program to combat discrimination against migrant workers and ethnic minorities by informing policy makers, employers, workers and trainers on how legislative measures and training activities can be made more effective.   The program covers empirical verification of discrimination, research to assess the scope and efficacy of legislative measures to combat discrimination, research to evaluate training and education in anti-discrimination or equal treatment and seminars to disseminate and draw conclusions on research findings. Despite this, the phenomenon of discrimination in access to employment is assuming alarming proportions in many countries, for example in Netherlands.[96]

 

In the context of Western Australia, the current government should surely and certainly take protective and special measures[97] to ensure that migrants are not disadvantaged.   The protective measures  “recognize the distinct cultural characteristics of particular racial or ethnic groups so that they can participate fully in the society in which they live.”  These may consist of “ … the maintenance of language and culture - may constitute legitimate differential treatment and therefore be non-discriminatory.”

The special measures “… taken for the sole purpose of securing the adequate advancement of certain racial or ethnic groups in order to ensure that such groups can enjoy or exercise their human rights in a manner equal to the rest of society.”  They include 'catch up' measures to address “… to a level comparable to the rest of Australian society. Such measures are not considered discriminatory so long as they do not lead to the maintenance of separate rights for different racial groups and do not continue once the objectives of the special measure have been achieved.”

 

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(This essay contains 5,474 words excluding title, headings and foot-notes)