To mark NAIDOC week, HRM looks into lesser known facets of Indigenous employment and shares helpful resources that HR can add to their toolkit.

HRM has previously written about the worrying state of employment for Aboriginal and Torres Strait Islander people, we’ve touched on some barriers Indigenous employees face in the workplace (and how to overcome them), and shared some organisations that are making strides in closing the employment gap.

To mark this year’s NAIDOC week, HRM looks into three things that HR might not be aware of and shares some useful HR resources.

1. Employers can recruit exclusively Indigenous talent

Australia’s discrimination laws were put in place to ensure people aren’t treated adversely due to their race, culture, gender, religion, age or disability. For employment, that generally means you can’t hire or refuse to hire someone based on those characteristics. However, there are provisions in place that recognise that some marginalised communities, such as Indigenous Australians, face disadvantages that make targeted recruitment desirable.

Firstly, there are ‘special measure’ exceptions which aim to help disadvantaged candidates.  The second is ‘genuine occupational requirements’ meaning that a person’s age/sex/race etc. is a requirement of that specific role, for example hiring an Indigenous candidate to fill the role of an Indigenous liaison officer.

Special measure exemptions can apply to those who possesses a protected characteristic. This means if an employer believes they’re able to combat an area of disadvantage or discrimination by employing an Indigenous staff member, they are legally able to limit their recruitment pool to include Indigenous candidates exclusively. 

A report by the Victorian Equal Opportunity and Human Rights Commission cites the example of a healthcare organisation that felt hiring Indigenous female practitioners would help to attract more Indigenous female patients to the facility.

“If you want to create a position for Indigenous people, you will need to determine whether the action you take is a special measure and is not discriminatory. You need to ask yourself whether the measure is necessary, genuine and justifiable given the needs of the group who will benefit,” says the report.

These acts of ‘positive discrimination’ – also referred to as ‘positive acts’ – can pertain to full-time employment opportunities, mentorship or training programs and, in some cases, university degrees.

“In all jurisdictions, aside from NSW, an employer must meet certain requirements before a targeted recruitment strategy will be deemed a ‘positive action’,” says Fay Calderone, partner at Hall and Willcox. 

In order to meet these requirements, employers must be able to prove that a targeted recruitment strategy:

1. Is necessary because members of a racial group are disadvantaged because of their race
2. Will promote equal opportunity for members of that racial group
3. Has the sole purpose of promoting equal opportunity
4. Is reasonable and proportionate
5. Will stop once its purpose has been achieved

Employers in all states, except NSW, don’t need to apply for special consideration if they’d like to create a position specifically for a someone from a marginalised community, like an Indigenous or female candidate. But they do have to be prepared to explain their targeted recruitment, and should minimise the risk of complaints. (See state break down of exceptions below).

NSW is a bit different from the other states in that you do have to make an application for exemption for special measures.

“Employers in NSW wanting to conduct targeted recruitment must apply for an exemption to the President of the Anti-Discrimination Board NSW under s 126 of the Anti-Discrimination Act 1977 (NSW),” says Calderone.

“The Anti-Discrimination Board NSW publishes these exemptions on its website and expressly categorises exemptions granted to include designating positions for Aboriginal or Torres Strait Islander people,” she adds.

A handy tip: The Australian Human Rights Commission has provided employers with the following template to include in all job advertisements should they consider creating an Indigenous targeted role.

‘[Name of employer] considers that being Aboriginal or a Torres Strait Islander is a genuine occupational requirement for this position under s 42 of the Discrimination Act 1991 (ACT)/ s 14 of the Anti-Discrimination Act 1977 (NSW)/ sub-s 35(1)(b)(ii) of the Anti-Discrimination Act 1996 (NT), s 25 of the Anti-Discrimination Act 1991 (Qld)/ sub-s 56(2) of the Equal Opportunity Act 1984 (SA)/ s 41 of the Anti-Discrimination Act 1998 (Tas)/ sub-s 26(3) or s 28 of the Equal Opportunity Act 2010 (Vic)/s 50 of the Equal Opportunity Act 1984 (WA) [select applicable].’

Learn how to source and recruit the best talent for your workplace with AHRI’s Recruitment and workplace relation introductory course.

2. A different kind of business

For a lot of Australians, the cultural practices surrounding loss (particularly of a loved one) require only close family and friends. But for many Indigenous people, cultural practices and protocols require the participation of the whole community. These have been labeled with the English expression ‘Sorry Business’. 

For employers, the most obvious difference has to do with time. Generally, Sorry Business requires more than just a few days leave. It’s also important to know that in some communities Sorry Business isn’t limited to mourning a death, it can also be carried out when a community member is sick or imprisoned, or if something significant occurs to an Indigenous landmark.

These differences can create burdens for Indigenous employees that other staff won’t face. 

They may need to travel across the country at short notice as there’s no specific timeframe around the length of Sorry Business  – it’s often determined by the type of relationship between the employee and the individual being mourned or the deceased’s status within the community.

Of course, cultural differences and emotional reactions to bereavement aren’t limited to Aboriginal and Torres Strait Islander employees. Having a culture in place that’s responsive to the individual needs of workers who face tragedy is always best practice.

A handy tip: In an effort to support staff who may have to undergo ‘Sorry Business’, many organisations are making it part of their formal leave policies. Queensland Health has developed a comprehensive guide for employers on how to best manage death and dying with Indigenous staff.

3. Understanding language

There are more than 250 known Indigenous languages in Australia, with 800 different dialects, and around 90 per cent of them are considered endangered, according to the Australian Institute of Aboriginal and Torres Strait Islander Studies (AIATSIS).

Thirty-nine per cent of Aboriginal people and 56 per cent of Torres Strait Islanders have used their traditional language at some point in their life, and 1 in 9 Indigenous people over the age of 15 don’t classify English as their first language. 

Learning and using traditional language plays an important role in Aboriginal and Torres Strait Islander’s sense of identity and wellbeing, according to AIATSIS. 

Just as some organisations offer alternative languages for documents/policies for culturally diverse staff, it’s appropriate to do so for Indigenous Australians. Keep in mind, this isn’t as simple as offering a physical translation of a document. Workplace policies or strategies should be created in consultation with Indigenous staff. As a rule of thumb, HR should follow the simple method of: consult, listen and action together.

The important thing to remember about “Indigenous culture” is that it’s not just one culture. Prior to colonial invasion, there were over 500 Indigenous nations scattered across Australia and many Indigenous people still identify with a smaller clan within one of these nations. So there are no blanket rules around what Indigenous staff want or need. To that end, HRM would like to acknowledge that the views in this article do not reflect the experiences or needs of all Indigenous people.

A handy tip: NAIDOC Week is just one of many culturally significance times for Indigenous staff. HR should be aware of some other important dates:

26 January – Survival/Invasion Day 

26 May – Sorry Day

3 June – Mabo Day

4 August – National Aboriginal and Islander Children’s Day 

9 August – International Day of the World’s Indigenous Peoples