Workplace Discrimination in South Australia

In South Australia, the Equal Opportunity Act 1984 makes it unlawful to discriminate against a person on the basis of certain attributes including race, sex and disability. Discrimination is unlawful in the workplace, as well as in a number of other areas of public life. Some South Australian workers are also covered by the Fair Work Act 2009, which also prohibits discrimination in the workplace. This page deals with workplace discrimination in South Australia.

Legislation

In South Australia, there is a range of anti-discrimination legislation that operates at both state and federal level.

Federal anti-discrimination laws include 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 in South Australia are also covered by the general protections provisions of the Fair Work Act 2009, which include recourse to make unfair dismissal claims where dismissal occurs for a discriminatory reason. 

What is unlawful discrimination?

Under the Equal Opportunity Act 1994, acts are discriminatory if they are done because of sex, sexuality, gender, age, race, physical or mental disability, pregnancy, carer’s responsibilities, or a person’s relationship status.

Discrimination is the unfavourable treatment of a person:

• because they have an attribute; or
• because of a characteristic that pertains to people who have that attribute; or
• because they cannot comply with a requirement because they have an attribute; or
• because they have a relative or associate who has an attribute.

Discrimination is unlawful against workers, in education, in the provision of accommodation, in the provision of goods and services, in relation to superannuation and in relation to associations and qualifying bodies.

Complaining to the Equal Opportunity Commissioner

A person may complain about discrimination to the Equal Opportunity Commissioner in writing within 12 months of the alleged conduct (or within 12 months of the last of a series of incidents). If a complaint is lodged outside of this time frame it may not be accepted.

The Commissioner may conduct an investigation into the alleged discrimination. In order to assist with this process, it can make various orders including ordering a person to deliver up documents or things which may be of relevance to the investigation.

The Commissioner may refer the matter to compulsory conciliation. This is a form of alternative dispute resolution where parties are encouraged to resolve the dispute with the assistance of a conciliator.

Lawyers do not attend conciliation conferences unless the Commissioner gives permission.  

If conciliation is unsuccessful, or if the Commissioner believes conciliation will not resolve the matter, then the Commissioner may refer the matter back to the Equal Opportunity Tribunal for a hearing. 

If the Tribunal finds that unlawful discrimination occurred, it may make an order for:

• compensation for loss or damage;
• a party to refrain from certain unlawful conduct;
• a party to perform specified acts.

Complaining to the Fair Work Commission

Under section 351 of the Fair Work Act 2009, it is unlawful for an employer to take adverse action against an employee on the grounds of a protected attribute such as sex, race or age. 

There are two types of adverse action complaints that can be commenced under the Fair Work Act. The first situation is where the adverse action is the termination of the person’s employment. This is known as unlawful dismissal, and a person who wishes to lodge a complaint must do so within 21 days of the date of termination.

Other adverse action claims relate to action that did not involve dismissal such as demotion or denial of promotions or benefits. In these cases, adverse action claims must be brought to the Fair Work Commission within 12 months of the alleged adverse action.

Racial Vilification

The Racial Vilification Act 1996 makes it a criminal offence to incite hatred, serious contempt or severe ridicule for a person or persons because of their race by threatening physical harm or inciting others to do so. Race is defined as including colour, ethnic origin, country of origin, and nationality.

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

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