Workplace Discrimination in WA | Civil Lawyers Western Australia

Western Australia, workplace discrimination is covered by both state and federal discrimination law. If a person is employed by a “national systems employer” then they are covered by the Fair Work Act 2009 (Cth).  Western Australian employees are also covered by the Equal Opportunity Act 1984 (WA), unless they are employed by the Commonwealth government.

All employees in Australia are also covered by the federal anti-discrimination legislation, which includes the Racial Discrimination Act 1975 (Cth), the Disability Discrimination Act 1992 (Cth), the Sex Discrimination Act 1984 (Cth), and the Age Discrimination Act 2004 (Cth).

What is prohibited under the Equal Opportunity Act?

The WA Equal Opportunity Act prohibits discrimination on the ground of sex, marital status, pregnancy, breastfeeding, gender history, family responsibility and family status, sexual orientation, race, religious or political conviction, impairment and age. Collectively, these are known as protected attributes.

Direct discrimination occurs when a person treats another person less favourably than he or she would treat someone without the protected attribute, in circumstances which are the same or not materially different. An act may be discriminatory even if there was more than one reason for doing that act, if one of the reasons was discriminatory.

Discrimination may be based on:

• a protected attribute that the aggrieved person possesses; or
• a characteristic attributed to a person with the protected attribute; or
• a characteristic imputed to a person with a protected attribute.

The Equal Opportunity Commission

The WA Equal Opportunity Commission is established under the EOA. 

A person in WA may bring a complaint to the Equal Opportunity Commission under section 83 of the EOA. A complaint may be made by the person who is alleging a contravention of the EOA, by a union on behalf of a person, or by one or more people on behalf of themselves and others.

The Commissioner has the power to direct people to furnish the Commission with information and to direct parties to attend a compulsory conference. If, after conducting an investigation and a conference, the Commissioner believes that the complaint is frivolous, vexatious, misconceived or lacking in substance, the Commissioner may terminate the complaint. 

The complainant has 21 days from the date of notification of termination of the complaint to request that the Commissioner refer the matter to the State Administrative Tribunal of Western Australia.

If a matter is not terminated and the Commissioner is of the view that the matter may be resolved by conciliation, the Commissioner may order the parties to attend a conciliation conference. If the matter is unresolved through conciliation, or the Commissioner is of the view that it cannot be resolved by conciliation, then the Commissioner may refer the matter to the State Administrative Tribunal at the complainant’s request.

What does the State Administrative Tribunal do?

Once proceedings have been commenced in the State Administrative Tribunal (SAT) the Applicant may be ordered to file a Statement of Issues, Facts and Contentions setting out their case.

The Respondent will then be required to respond with their own Statement of Issues Facts and Contentions. 

The parties may also be required to exchange witness statements and discoverable documents. The SAT may also order the parties to attend a mediation either before or after the filing of documents. If the matter remains unresolved by mediation, then it may be referred to a hearing.

Federal anti-discrimination legislation

Some of the main differences between the state and federal anti-discrimination schemes are in how the protected attributes are defined. For example, the Disability Discrimination Act refers to discrimination based on “disability” whereas the EOA refers to “impairment”. The Sex Discrimination Act refers to discrimination on the ground of “gender identity” whereas the EOA refers to “gender history”.

There are also differences in the remedies that are available through the state and federal systems. Under section 127 of the EOA the State Administrative Tribunal can make an order for compensation for an amount up to $40,000. There is no jurisdictional limit on the damages that can be awarded in discrimination proceedings in the Federal Court of Australia or in the Federal Circuit and Family Court of Australia. 

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