Equal Opportunity in the Workplace

In Australia, there is a principle that all people should receive equal and fair treatment in the workplace. There is both federal and state legislation that protects such equal opportunity in employment and makes it unlawful to discriminate against employees because of a protected attribute. This article looks at the law in relation to equal opportunity in the workplace.

Federal equal opportunity legislation

At a federal level, the Fair Work Act 2009 prohibits an employer from taking adverse action against an employee, former employee, or prospective employee on the basis of the following attributes:

  • Race
  • Colour
  • Sex
  • Sexual orientation
  • Gender identity
  • Intersex status
  • Family or carer’s responsibilities
  • Marital status
  • Pregnancy
  • Breastfeeding
  • Age
  • Physical or mental disability
  • Religion
  • Political opinion
  • National extraction
  • Social origin
  • Or because they experience family and domestic violence.

The law does recognise that discrimination is justifiable in certain circumstances.  For instance, it is lawful to discriminate in employment due to the inherent requirements of the position. In addition, a religious institution can discriminate in employment decisions when this action is based on sincere religious beliefs. Unlawful violations of equal employment provisions in the Fair Work Act should be referred to the Fair Work Commission.

Other federal legislation also works to ensure equal workplace opportunity including the Sex Discrimination Act 1984, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992, and the Age Discrimination Act 2004. The Australian Human Rights Commission (AHRC) enforces these laws by investigating complaints of alleged discrimination. An employee can lodge a complaint with the AHRC if they believe they have faced unlawful discrimination.

State equal opportunity legislation

Each state in Australia has its own discrimination law and agency that investigates complaints.

New South Wales

In NSW, the Anti-Discrimination Act 1977 encourages equal opportunity by prohibiting discrimination based on attributes such as race, gender identity, work status and sexual orientation, and latterly religious vilification. A discrimination complaint can be made to Anti-Discrimination NSW.

Victoria

In Victoria, the Equal Opportunity Act 2010 makes it unlawful to discriminate on the basis of a protected personal attribute such as age, disability, pregnancy, breastfeeding, marital, parental or carer status, political belief, race, or lawful sexual orientation. This law covers discrimination and equal opportunity at work, in education, in accommodation, and in the provision of goods and services. The Victorian Equal Opportunity and Human Rights Commission investigates suspected breaches of this law.

Queensland

In Queensland, the Anti-Discrimination Act 1991 prohibits unfair discrimination against people in different areas of life including the workplace on the basis of gender, sexuality, relationship status, impairment, family responsibilities, or religious belief or activity. The Act allows individuals to request resolution through complaints to the Queensland Human Rights Commission.

South Australia

It is unlawful in SA under the Equal Opportunity Act 1984 for an employer to discriminate against a worker because of sex, gender identity, intersex status, or sexual orientation. Employers cannot discriminate when selecting employees, offering, or implementing employment terms and conditions, limiting access to promotional opportunities, transfer and training, termination, or adverse action. The South Australian Commissioner for Equal Opportunity has the authority to hear complaints under this legislation.

Western Australia

In WA, the Equal Opportunity Act 1984 promotes equal employment opportunities irrespective of the worker’s trade union association, sex, marital status, pregnancy, breastfeeding, family status or responsibilities, race, political or religious conviction, impairment, age, or gender. The Commissioner for Equal Opportunity hears complaints in relation to contraventions of the Act.

Tasmania

The Anti-Discrimination Act 1998 requires Tasmanian organisations and employers to take all reasonable measures to protect employees, agents, officers and members from workplace discrimination and harassment. Complaints can be made to the Anti-Discrimination Commissioner.

Australian Capital Territory

In the ACT, the Discrimination Act 1991 prohibits discrimination against protected characteristics in areas of life including employment. A person who experiences discrimination can approach the ACT Human Rights Commission.

Northern Territory

The Anti-Discrimination Act 1996 makes it illegal in NT to discriminate against a worker because of sex, sexuality, marital status, pregnancy, breastfeeding, or parenthood. The NT Anti-Discrimination Commission investigates accusations of discrimination. 

Direct and indirect discrimination under equal opportunity law

Employers must avoid both direct and indirect discrimination in the workplace. For example, it is direct workplace discrimination to reject a candidate during a job application process because of their race, or to refuse promotional opportunities to an employee because she is pregnant. Indirect discrimination, by contrast, is often more insidious because it can be difficult to detect. Indirect discrimination results from workplace policies that apply to all employees but end up disadvantaging an individual or group who share the protected characteristic. For example, the company might implement a policy that requires all employees to work a Saturday shift. This fails to provide equal employment opportunity to Jewish workers who may have religious commitments on that day.

Every employer should implement an equal employment opportunity policy. This not only complies with the law, but also promotes workplace diversity and an inclusive and positive workplace culture. Please contact the employment law team at Go To Court on 1300 636 846 for legal advice about equal employment opportunity, discrimination at work or any other legal matter.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Go To Court Lawyers in 2020.
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