Those who are subjected to workplace discrimination in the Northern Territory are protected both under territory law and under federal law. All Northern Territory employees are covered by the Fair Work laws and so may have recourse to the general protections provisions of that legislation. Workplace discrimination in the NT is also prohibted under the Northern Territory Anti-Discrimination Act.
In the Northern Territory, discrimination on the basis of certain attributes is unlawful under Section 19 of the Anti-Discrimination Act .
The prescribed attributes include:
- marital status
- irrelevant criminal record
- trade union activity, and
- political or religious opinion.
The Anti-Discrimination Act prohibits the unfavourable treatment of a person on the basis of a prescribed attribute, or on the basis of a characteristic which is imputed to a person with that attribute. For example, breastfeeding is a characteristic which appertains to women who have been pregnant.
The Anti-Discrimination Act also prohibits conduct which is associated with discrimination, such as sexual harassment, victimisation, failing to accommodate a special need, refusing a guide dog, or requesting a person to provide unnecessary information upon which a discriminatory decision or conduct could be made. Sexual harassment is defined as an unwanted request or demand for sexual favours, or an unwanted act of physical intimacy, with the intention of humiliating or offending the person on the receiving end, or where it is reasonably foreseeable that the person would be offended, humiliated or intimidated.
Victimisation occurs where an individual is treated less favourably because he or she exercises a right to make a complaint of discrimination, or because he or she proposes to do so, or because he or she intends to give evidence in support of a complaint under the Act.
Workplace discrimination in the NT is unlawful not only in the course of an employee’s work, but also in deciding who should be offered a job or deciding what terms and conditions of employment that person should be offered.
The NT Anti-Discrimination Commission is established under the Anti-Discrimination Act and is given the jurisdiction to carry out investigations in relation to complaints of discrimination, as well as to conciliate complaints and facilitate community education regarding discrimination.
Part 6 of the Act relates to making complaints. Unlike other states and territories where complaints of discrimination must be made within one year of the alleged discriminatory conduct, in the NT a complaint must be made within six months of the alleged contravention of the Act.
The Commissioner may accept a complaint which is lodged after the six-month time limit has expired. However, a complainant must detail why he or she is late in making the complaint and demonstrate that the complaint has merit.
The Commissioner has jurisdiction to investigate a complaint in any manner he or she considers fit, after which he or she may:
- dismiss the complaint
- refer it to conciliation, or
- order that it proceed to hearing if it appears it cannot be resolved via conciliation.
Parties are obliged to attend a conciliation conference if they are ordered to do so. Failure to attend the conference may result in a fine.
If the Commission hears a matter and determines that discrimination has occurred, it may:
- order the payment of compensation of up to $60,000;
- order the respondent to apologise;
- order that the respondent refrain from the conduct and not repeat it; and
- make any other order it considers necessary to achieve redress for the complainant.
If the Commission dismisses a complaint because it considers that it is vexatious and frivolous, it may also make an order that the complainant pay the respondent’s costs of up to $30,000.
Strict timeframes apply for employees who have been terminated from their employment as a result of workplace discrimination in the NT. Section 365 of the Fair Work Act 2009 entitles employees to bring an application to the Fair Work Commission if they have been terminated from their employment as a consequence of discriminatory conduct. An application must be brought within 21 days of the termination of employment.
If the conduct has not resulted in the termination of the person’s employment, but in other adverse action such as demotion and denial of opportunities such as training and promotion, then an application may still be made to the Fair Work Commission under section 372 of the Act.
If you require legal advice about workplace discrimination in the NT or about any other legal matter please contact Go To Court Lawyers.