You are covered by the anti-discrimination provisions in the Fair Work Act 2009 (‘the FWA’) if you are a ‘national system employee‘ as defined in the Act. As all States and Territories other than Western Australia have referred their industrial relations powers to the Commonwealth, most employees in those States and Territories will be national systems employees and therefore covered by the FWA. If you are employed by a State government, then you are most likely covered by State industrial relations legislation and the FWA will not apply to you.
If you are employed in Western Australia by a constitutional corporation or the Commonwealth government, then you are covered by the workplace discrimination provisions in the Fair Work Act 2009. If you are employed in Western Australia by the Western Australian government, a sole trader, a partnership, or any entity other than a corporation, then you are not covered by the FWA and will need to refer to the Equal Opportunity Act 1984 for your rights.
Workplace discrimination occurs when a person is treated differently than another person on the grounds of a protected attribute. For employees who are covered by the FWA these protected attributes are: race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
Section 351 of the FWA makes it unlawful for an employer to take ‘adverse action’ against an employee, or a prospective employee, because of any of these protected attributes. Adverse action includes dismissing an employee, demoting an employee or altering the employee’s position to his or her prejudice, injuring the employee or otherwise discriminating against the employee.
The FWA states that any act which wouldn’t be unlawful under State or Federal anti-discrimination legislation is also not unlawful under the FWA. This effectively means that the FWA is not intended to have a wider scope than any of the other anti-discrimination legislation which applies.
There is a significant body of legislation regarding workplace discrimination, both at the Federal and State level, and not all are identical in their wording or their application. You should seek legal advice regarding your options.
If your employment has been terminated and you believe it is for discriminatory reasons, then you may bring an application to the Fair Work Commission under section 365 of the FWA. The application must be brought within 21 days of the date of the termination of your employment. This is known as an ‘unlawful termination’ proceeding.
If your employment has not been terminated but you are alleging other adverse action was taken by your employer on the grounds of a protected attribute, then you may bring an application pursuant to section 372 of the FWA.
The Fair Work Commission has the power to conciliate unlawful termination and adverse action complaints. Usually this is conducted by telephone conference first. If unresolved then the matter may be referred to an arbitration before a Fair Work Commissioner. The Commissioner has the power to make an order for reinstatement of the employee or for the award of damages.
All employees Australia-wide may also make a complaint to the Australian Human Rights Commission about discrimination which is unlawful by virtue of the Australian Human Rights Commission Act 1986, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992, the Sex Discrimination Act 1984, and the Age Discrimination Act 2004.
The Sex Discrimination Act 1984 makes it unlawful to discriminate on the grounds of sex, pregnancy or potential pregnancy, family responsibilities, gender identity, intersex status, marital or relationship status and breastfeeding. It also makes sexual harassment unlawful. Sexual harassment is defined as conduct where the offending person makes an unwelcome sexual advance or an unwelcome request for sexual favours to the person harassed or engages in other unwelcome conduct of a sexual nature in relation to the person harassed, in circumstances where a reasonable person would anticipate that the harassed person would be offended, intimidated or humiliated.
The Racial Discrimination Act 1975 makes it unlawful for a person ‘to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life’.
The Disability Discrimination Act 1992 contains a long list of attributes which constitute a ‘disability’, including total or partial loss of bodily or mental functions or a body part, the presence of organisms causing disease and illness, and the malfunction or disfigurement of part of the body. ‘Disability’ also includes past, present or potential disability.
The Australian Human Rights Commission (‘AHRC’) is established under the Australian Human Rights Commission Act 1986, and may hear complaints of workplace discrimination under any of the federal anti-discrimination legislation. Delegated officers of the AHRC have the power to conciliate complaints at compulsory conferences and however it does not have the power to act as an adjudicator. The President of the AHRC has the power to order people to provide information.
Complaints of workplace discrimination can be made in writing or over the phone to an officer of the AHRC but should be made within 12 months of the date of the alleged discrimination; otherwise the AHRC may terminate the complaint.
In most circumstances a complainant will be advised to name the particular individual who is accused of engaging in the offending conduct as well as the employer. The respondent is given an opportunity to respond to the complaint prior to attending a compulsory conference.
If the matter is not settled at the conference then the AHRC must terminate the complaint and if the complainant wishes to pursue the matter further, he or she must bring an application to the Federal Court or the Federal Circuit Court within 60 days of the date of the notice of termination by the President of the AHRC.
Your employer may be vicariously liable (ie, deemed to be legally liable) for the discriminatory acts of its employees, officers or agents. However, an employer may be found to not be legally liable if it can demonstrate that it did all that was reasonable to prevent the discriminatory conduct from occurring. In most circumstances, this will mean that an employer is expected to have in place policies explaining discrimination and that it is unlawful and unacceptable in the workplace, and that employees will be inducted in those policies and/or undergo training sessions. An employer will also be expected to take any complaint made by an employee seriously, and have in place either a grievance resolution procedure or a process for resolving the complaint.
A full copy of the Commonwealth Fair Work Act 2009, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 and the Age Discrimination Act 2004 can be found on the Commonwealth government legislation website.
The state and territory legislation applicable to workplace discrimination is:
- New South Wales – Anti-Discrimination Act 1977
- Victoria – Equal Opportunity Act 2010
- Queensland – Anti-Discrimination Act 1991
- South Australia – Equal Opportunity Act 1984
- Tasmania – Anti-Discrimination Act 1998
- Australian Capital Territory – Discrimination Act 1991
- Northern Territory – Anti-Discrimination Act
- Western Australia – Equal Opportunity Act 1984.