Discrimination in Employment

Affirmative Action

Employers must generally treat all their employees fairly and equally and must not discriminate against anyone for any of the reasons covered under the above laws. Effectively, they must all be equal employment opportunity employers.

However there is provision in the Commonwealth Acts discussed above to allow employers to discriminate in favour of some groups over others in some circumstances. It is acceptable for an employer to advertise to employ someone of a particular racial background where the job is to provide welfare services to people of the same racial background and the best way of providing these services is to have someone of the same background provide them. However, if an employer wanted to set up a female-only apprenticeship scheme to encourage more women to take up a particular trade, they would almost certainly need to get a specific exemption to do so. This type of situation, where the aim is to redress past disadvantage or discrimination, is often called ‘affirmative action’.

Under the Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth), federal departments and authorities such as Australia Post and the ABC must also have an Equal Employment Opportunity plan and affirmative action programs for women, aboriginal people, people from non-English-speaking backgrounds, and people with disabilities.

The Fair Work Act 2009 (Cth)

The Fair Work Act 2009 (Cth) protects workers’ rights in the workplace.  The Fair Work Act also makes discrimination in the workplace unlawful. Often workers’ rights will be a discrimination issue as well as an employment issue, however, this is not always the case. Workers’ rights are often to do with wages, employment conditions, breach of award or contract, and will not have a connection with discrimination. However, the Fair Work Act acknowledges that sometimes discrimination can also occur, and this is unlawful.

What types of discrimination are covered

Section 351 of the Fair Work Act states that an employer must not take adverse action against an employee, or prospective employee on the basis of:

• 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

However, where the discrimination is an inherent requirement of the particular position concerned (such as a female attendant in a female change room), or an action is taken against a staff member in good faith, in accordance with religious beliefs or tenets, in an attempt to avoid injury to the religious susceptibilities of adherents of a religion or creed, the discrimination may not be unlawful (s351(2)).

The Fair Work Act is employment specific, unlike the anti-discrimination Acts. Anti-discrimination Acts apply to other areas of life as well as the workplace. Complaints under the Act are directed to Fair Work Australia to be investigated and conciliated according to their procedures. If these procedures are initiated and then fail, a complainant can make an application to an eligible state or territory court, the Federal Court or the Federal Circuit Court in accordance with Fair Work legislation.

Complaints process under the Fair Work Act

Complaints can also be directed to Fair Work Australia, or become the subject of a court application. Section 365 defines the jurisdiction of Fair Work Australia to dealing with disputes over dismissal. However, section 372 allows Fair Work Australia to deal with any other work related dispute as well.
Dismissal complaints under the Fair Work Act must be made within 60 days after the dismissal took effect, unless Fair Work Australia permits a time extension for exceptional circumstances (s366).

It is mandatory for Fair Work Australia to organise a conference to deal with the dispute, using mediation or conciliation (s368). Conferences are the first line of dispute resolution, however conference attendance is voluntary and complainants are entitled to be heard by Fair Work Australia. If all reasonable attempts to resolve the dispute have been or are unlikely to be successful, Fair Work Australia will issue a certificate stating the situation (s369). Once this remedy is exhausted, a person is entitled to make a general protections court application under Division 2 of Part 4-1 of the  Fair Work Act (s370).

Discrimination complaints not involving dismissal are covered by the civil remedies provisions, and can be dealt with by Fair Work Australia. There are limits on the amounts that can be awarded for damage arising from discrimination – restrictions are 20 penalty units for individuals and 100 penalty units for a body corporate (s798). A penalty unit is currently $110. Civil remedy limitations apply in such cases. In Tasmania, this is 6 years under the Limitation Act 1974 (Tas).

Applying to the courts

If the complaint is not concerning dismissal, the complainant can apply directly to the Federal Court or the Federal Circuit Court (ss539–543), and to State Courts. There is also the option to go to Fair Work Australia, under section 372 of the Act.

Civil remedy provisions in the Act are outlined in section 539 – these are aspects of employment that if breached can be addressed with a civil remedy (such as reinstatement, damages, or wages). These are breaches of work conditions or agreements, such as minimum wage orders, outworker terms, and equal remuneration orders made by the Fair Work Act.

Remedies available under the Fair Work Act are civil remedies (s539). Acts which also constitute criminal acts can be brought before a court in a criminal action under different legislation, such as where there has been negligence in the workplace and an injury.