Workplace discrimination in Queensland is the area of law which makes it unlawful for a person to treat another less favourably on the grounds of a certain attribute, such as race, sex, sexuality, and political and religious beliefs. The main legislation which prohibits discrimination in Queensland is the Anti-Discrimination Act 1991 (the Act). It makes discriminatory conduct unlawful, and therefore actionable at law, in certain contexts such as in the workplace, in the provision of goods and services, and in accommodation.
Attributes protected by discrimination laws
There are sixteen attributes listed under the Act which are protected by the discrimination laws. These are:
- Race, which may include colour, ethnic origin or ancestry, and nationality.
- Sex (gender).
- Impairment. This has an extensive definition, and includes physical or mental disability by reason of a disease or condition, or the loss of any bodily parts or bodily functions. Impairment is often referred to as disability in discrimination legislation in the Commonwealth and the other states and territories.
- Relationship status; which includes being single, divorced, married, living in a registered relationship under the Relationships Act 2011, being widowed, and being separated.
- Sexuality; which means bisexuality, heterosexuality or homosexuality.
- Breastfeeding. This is an extension of the prohibition of discrimination on the basis of pregnancy.
- Gender identity. This includes whether a person is an indeterminate sex (intersex) and identifies as belonging to a particular sex, and also includes where a person identifies or has identified as a member of the opposite sex and seeks to live that way.
- Parental status; namely, whether or not a person is a parent.
- Family responsibilities; which means that a person has a dependent child or another member of the immediate family for which they are carer or they support.
- Lawful sexual activity; which means whether or not a person is a lawfully engaged sex worker.
- Religious beliefs or activity. This includes whether a person does or doesn’t believe in, or engage with, a certain religion.
- Political beliefs or activity.
- Trade union activity.
- Relationship with or association with a person having any of the above attributes.
What is discrimination?
Workplace discrimination in Queensland can be on the basis of a characteristic that a person with a protected attribute generally has, or a characteristic that is attributed to or imputed to a person with that protected attribute. For example, the necessity to express milk is a characteristic attributed to a woman who breastfeeds. It would therefore be unlawful to discriminate against a woman who needs to interrupt her work routine in order to express milk.
Discrimination may be direct, which is where a person is treated less favourably than someone who does not have the attribute, in circumstances which are the same or not materially different. Alternatively, it may be indirect, which is where a party imposes a term or rule which a person who has a protected attribute is unable to comply with.
Discrimination in the workplace
Division 2 of Part 4 of the Act relates to work and work-related areas where discrimination is prohibited. It is unlawful not only to discriminate in the workplace, but in the pre-work phase as well, which includes deciding who should be offered employments and also deciding the arrangements which should be made. Section 15 details the kinds of action which may constitute discriminatory conduct in the workplace, for example, demoting a person, dismissing a person and denying a person opportunities in the workplace for training or promotion.
Bringing a Workplace Discrimination in Queensland claim with the Anti-Discrimination Commission
The Queensland Anti-Discrimination Commission is established under Chapter 9 of the Act to investigate possible contravention of the Act, to facilitate conciliations with regard to complaints of discrimination and conduct education and training (amongst other functions). Complaint forms are available online.
The procedure for making a complaint is set out in chapter 7 of the Act. If you believe you have been discriminated against you may bring a complaint to the Commission within one year of the incident which gave rise to the discrimination. The Commission has the discretion to reject an application if it is made outside this time, or if the Commission considers that it relates to trivial, unsubstantiated, vexatious or frivolous matters. It must make this decision within 28 days of receiving the complaint.
The complaint is provided to the respondent, who is also given 28 days to respond to the allegations in the complaint. A conciliation conference will usually then be ordered, which is an opportunity for the parties to meet and resolve the matter in a without prejudice environment. An investigation may or may not be initiated by the Commission.
If a complaint is unresolved via conciliation, then the complainant has 28 days within which to notify the Commission to refer the matter to the Queensland Civil and Administrative Tribunal, which then has jurisdiction to conduct a hearing to determine whether or not the discrimination occurred. Proceedings are then conducted in accordance with the Queensland Civil and Administrative Tribunal Act 2009 and the Queensland Civil and Administrative Tribunal Rules 2009. The Tribunal may make orders for compensation, injunctions to prevent discrimination from occurring, and require a party to pay costs to the other.