Workplace discrimination in WA is covered by both State and Federal discrimination law.
If you are employed by a “national systems employer” – meaning a constitutional corporation or the Commonwealth government – then you will be covered by the Fair Work Act 2009 (Cth) and its provisions prohibiting discrimination in employment, in particular, section 351 of that Act.
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). All employees employed in Western Australia will also be covered by the Equal Opportunity Act 1984 (WA), unless employed by the Commonwealth government.
What kind of workplace discrimination in WA is prohibited under the Equal Opportunity Act?
The EOA 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, “protected attributes”).
Direct discrimination occurs if, “on the ground of”:
- 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 discriminator treats the aggrieved 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 still be discriminatory even if there was more than one reason for doing that act, if one of the reasons was discriminatory.
What does the Equal Opportunity Commission do?
The Equal Opportunity Commission is established under the EOA.
A person 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, a union on behalf of a person, or 1 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 after conciliation, or the Commissioner is of the view that the matter 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 (the complainant) may be ordered to file a Statement of Issues, Facts and Contentions setting out his or her case, to which the Respondent will respond with his or her 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 are in the description of the protected attributes, however in substance and meaning they are for the most part the same. For example, the Disability Discrimination Act refers to discrimination on the basis of “disability” whereas the EOA refers to an “impairment”, and the Sex Discrimination Act refers to discrimination on the ground of “gender identity” whereas the EOA refers to “gender history”.
Under section 127 of the EOA the State Administrative Tribunal can make an order for compensation, not exceeding the amount of $40,000. Unlike the SAT, there is no jurisdictional cap on damages which can be awarded in discrimination proceedings in the Federal Court or Federal Magistrates Court.