Those who are subjected to workplace discrimination in the NT (Northern Territory) have a choice between different anti-discrimination laws.
All Northern Territory employees are covered by the Fair Work laws and so may have recourse to the general protections provisions under those laws. They are also covered by specific Northern Territory anti-discrimination, namely, the Anti-Discrimination Act.
In the Northern Territory, section 19 of the Anti-Discrimination Act makes discrimination on the basis of certain attributes unlawful. These attributes include (amongst others):
- marital status
- irrelevant criminal record
- trade union activity, and
- political or religious opinion.
Workplace discrimination in the NT includes the preference, restriction, exclusion or distinction of a person based on one of the relevant attributes, which has the effect of nullifying equal opportunity.
It includes where a person is treated less favourably on the basis of that attribute, or a characteristic which appertains to or is imputed to a person with that attribute. For example, breastfeeding is a characteristic which appertains to women who have been pregnant.
The 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 has been considered a form of sex discrimination by the Courts, although it can happen to both men and women and the harasser can be of the same sex as the victim. It is defined as an unwanted request or demand for sexual favours, or an unwanted act of physical intimacy, where it is done with the intention of humiliating or offending the recipient of the conduct.
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.
Discrimination is unlawful not only in the workplace, but 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 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 must 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 either:
- 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 may result in a fine.
If the Commission hears a matter and determines that discrimination has occurred, it may:
- order the payment of compensation up to a maximum of $60,000
- order that the respondent make an apology
- 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 up to a maximum of $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 termination of employment, but 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.