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Workplace Discrimination in South Australia

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

The Equal Opportunity Act 1984 is the main legislation in South Australia which is designed to prevent, eliminate and provide legal recourse for unlawful discrimination in the workplace, as well as in a number of other areas of life such as the provision of goods and services and accommodation.  The Act establishes the office of the Equal Opportunity Commissioner and the Equal Opportunity Tribunal, both of which have different purposes and functions.

South Australia also has specific legislation to prevent and criminalise racial vilification, namely the Racial Vilification Act 1996

All South Australians will also be covered by federal anti-discrimination laws, which includes the Australian Human Rights Commission Act 1986 ,  the Racial Discrimination Act 1975, the Age Discrimination Act 2004, the Disability Discrimination Act 1992, and the Sex Discrimination Act 1984.   Employees in the private sector will be covered by the general protections provisions of the Fair Work Act 2009

The Equal Opportunity Act 1984 is designed to prevent, eliminate and provide legal recourse for unlawful discrimination in the workplace.

Kinds of discrimination prohibited by the Equal Opportunity Act 1984

Acts are only discriminatory if they are done because of, or on the grounds of, a protected attribute such as sex, sexuality, gender and gender history, age, race, disability (physical or mental), pregnancy, carer’s responsibilities, marital or domestic partnership and religious appearance or dress.

The Equal Opportunity Act makes discrimination unlawful against independent contractors and agents, persons within a partnership, and contract workers.

Claims of discrimination under the Equal Opportunity Act 1984

Part 8 of the Equal Opportunity Act relates to complaints which may be instituted by a person who claims unlawful discrimination contrary to the Act.  Complaints must be lodged with the Equal Opportunity Commissioner within 12 months of the alleged contravention (or within 12 months of the last of the series of alleged contraventions) otherwise the Commissioner may strike out the complaint.  The Commissioner is empowered to conduct investigations into whether the allegations of discrimination are substantiated, including ordering a person to deliver up documents or things which may be of relevance to the investigation.

Once a complaint has been received by the Commissioner or has been referred to the Commissioner by the Equal Opportunity Tribunal, the Commissioner may refer the matter to a compulsory conciliation.  Unlike many other States and territories, failing to comply with an order to attend a conciliation conference is an offence for which that party may be fined up to $2,500.  Lawyers cannot attend these conciliation conferences except without the Commissioner’s express consent.

If conciliation is unsuccessful, or if the Commissioner believes conciliation will not resolve the matter, then the Commissioner may refer the matter to the Equal Opportunity Tribunal for a hearing.  The Tribunal may make an order for compensation (including for hurt and humiliation), may order party to refrain from certain conduct which is unlawful under the Act, and may make any other such order as is necessary for redress of the situation.

The Racial Vilification Act 1996

The Racial Vilification Act makes it unlawful for a person to do a public act which is designed to incite hatred, ridicule or vilification of a person or group of persons on the grounds of race.  Race is defined under the act to include colour or ethnic origin, country of origin, and nationality.

The maximum penalty for a corporation which commits the offence of racial vilification is a fine of $25,000 and for an individual is a fine of $5,000 and/or three years’ imprisonment.

Adverse action claims of discrimination under the Fair Work Act 2009

Section 351 of the Fair Work Act 2009 (FW Act) makes it unlawful for an employer to take adverse action against an employee on the grounds of a protected attribute, such as sex, race, sexuality, religion and age.  There are two types of complaints that can be commenced under the FW Act; the first being where the adverse action complained of is the termination of the employee’s employment.  This is known as unlawful dismissal, and anyone who wishes to lodge a complaint with the Fair Work Commission must file an application within 21 days of the date of termination of employment.

For all other adverse action claims – such as demotion, denial of promotions or benefits, or prima facie discrimination – claims must be brought to the Fair Work Commission within 12 months of the alleged adverse action.

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