During job-hunting or at work, many people have encountered workplace discrimination. When faced with workplace discrimination, having a conversation with your employer or manager can be a good option. However, when confronted with serious workplace discrimination, we can use the law as a weapon to protect ourselves.

Today we introduce Australia’s anti-workplace-discrimination laws, as well as the channels for lodging workplace discrimination complaints.

I

Channel 1: Fair Work Ombudsman or Fair Work Commission

The Fair Work Ombudsman (FWO) and the Fair Work Commission (FWC) can handle complaints about unlawful workplace discrimination that breaches the Fair Work Act 2009.

Definition of unlawful workplace discrimination

The definition of unlawful workplace discrimination under the Fair Work Act 2009 is ——

An employer takes adverse action against an employee (or prospective employee) because that person has one or more of the following attributes:

Race

Colour

Sex

Sexual orientation

Age

Physical or mental disability

Marital status

Family or carer’s responsibilities

Pregnancy

Religion

Political opinion

National extraction or social origin

Note that under the Fair Work Act, potentially discriminatory conduct (adverse action) must be taken for the reasons listed above (the employee’s attributes above) in order to constitute unlawful workplace discrimination.

Adverse action includes but is not limited to:

Dismissing an employee

Refusing to hire a job applicant

Treating an employee differently from other employees

Using discriminatory terms in the contract when hiring an applicant (e.g. contract terms inferior to those of other employees at the same level)

Injuring an employee during employment

Adverse changes to an employee’s position (such as demotion)

Threatening an employee to do something

Example

Ms A worked at a company in Australia for a year. She interviewed for a vacant position within the company, hoping for a promotion. Ms A performed well in the interview, but her manager said: “Although you meet all the requirements for this position, we cannot promote you because you are about to take maternity leave.”

Adverse action: refusing to promote Ms A

Reason: Ms A was about to take maternity leave (pregnancy)

The manager’s conduct constitutes unlawful workplace discrimination under the Fair Work Act.

Employees include full-time employees, part-time employees, casual employees, probationary employees, apprentices, trainees, and individuals hired for a set period or for a specific task.

It is worth noting that if you attend a job interview and the employer refuses to hire you because you have one or more of the attributes listed above, this also constitutes workplace discrimination.

Conduct that does not constitute unlawful workplace discrimination

As mentioned above, the Fair Work Act provides that unlawful workplace discrimination must be adverse action taken on the basis of one or more of the prescribed attributes. In other words, if an employer treats you differently from other employees but the reason is unrelated to the prescribed attributes above, the conduct does not constitute workplace discrimination under the Fair Work Act.

Example

Mr B frequently makes mistakes at work, so his employer decides to give him additional training and reassign him to simpler tasks. In this situation, Mr B’s transfer is not because of any of the attributes mentioned above and does not constitute workplace discrimination.

In addition, the Fair Work Act provides that the following situations do not constitute workplace discrimination:

– Conduct permitted by a State or territory anti-discrimination law;

– Conduct taken to select people who can meet the inherent requirements of a particular position;

– In the case of a religious institution, conduct taken against an employee to avoid injury to religious susceptibilities (must be taken in good faith and not for other purposes).

Complaint process

If you believe you have experienced workplace discrimination at work or in an interview, you can seek the following assistance:

Lodge a complaint with the Fair Work Ombudsman (FWO). Complaints can be made on the FWO website or by calling the FWO hotline;

The FWO may fine the employer;

The FWO may bring court proceedings on behalf of the person who has been discriminated against.

Apply to the Fair Work Commission (FWC) for arbitration.

What to do if you are dismissed because of workplace discrimination

If you are dismissed and the reason for the dismissal is one of the attributes mentioned above (such as race, colour, sex, sexual orientation, etc.), you should immediately apply to the Fair Work Commission (FWC) for arbitration. One of the FWC’s functions is to resolve unfair dismissal matters.

II

Channel 2: Australian Human Rights Commission

In addition to the Fair Work Act 2009, the following federal laws also contain provisions dealing with discrimination:

Age Discrimination Act 2004 (age discrimination)

Australian Human Rights Commission Act 1986

Disability Discrimination Act 1992 (physical or mental disability discrimination)

Racial Discrimination Act 1975 (racial discrimination)

Sex Discrimination Act 1984 (sex discrimination, sexual orientation discrimination, etc.)

Therefore, you can also rely on the above laws to resolve workplace discrimination issues.

As mentioned above, complaints or applications under the Fair Work Act must be lodged with the Fair Work Ombudsman (FWO) or the Fair Work Commission (FWC). Complaints under these other laws must be lodged with the Australian Human Rights Commission (AHRC).

These laws generally divide the definition of discrimination into direct discrimination and indirect discrimination.

Direct discrimination

When a person (or group of people) is treated less favourably than others because of their background or attributes, such less favourable treatment constitutes direct discrimination.

Similar to the provisions of the Fair Work Act 2009 mentioned earlier, for a complaint to the Australian Human Rights Commission the discrimination must also be based on the person having a “protected attribute”.

These attributes include: race, sex, pregnancy, marital or relationship status, breastfeeding, age, disability, sexual orientation, gender identity, etc.

Example

An employer refuses to hire people of Asian descent or background — this constitutes direct discrimination (racial discrimination).

Indirect discrimination

When a rule or policy applies to everyone, but it unfairly disadvantages a particular group of people who share a common attribute, that rule or policy constitutes indirect discrimination. However, if the rule or policy is reasonable, it does not constitute indirect discrimination.

This concept can be somewhat abstract, so look at the example below to help understand it.

Example

Suppose a position’s recruitment requirement is: all employees must accept night shifts.

Although this requirement applies to everyone, it may constitute indirect discrimination against people with carer’s responsibilities (such as caring for children), because those people need to arrange for someone else to perform caring duties at night.

Whether this requirement constitutes indirect discrimination depends on whether it is reasonable. If the employer can provide a reasonable justification for why all employees must accept night shifts, the requirement does not constitute indirect discrimination.

Complaint process

Lodging a complaint with the AHRC is free. The AHRC will investigate the complaint and attempt to mediate (conciliation) between the parties to help find a solution that is acceptable to both.

If conciliation is unsuccessful, the complainant may commence proceedings in the Federal Court of Australia or the Federal Circuit Court of Australia.

Final thoughts

Finally, here are the key points:

When faced with workplace discrimination, you can choose to lodge a complaint with or apply for arbitration from the Fair Work Ombudsman (FWO), Fair Work Commission (FWC), or Australian Human Rights Commission.

If you choose to lodge a complaint with or apply for arbitration from the Fair Work Ombudsman (FWO) or Fair Work Commission (FWC), the applicable law is the Fair Work Act 2009.

If you choose to lodge a complaint with or apply for arbitration from the Australian Human Rights Commission, the applicable laws include the Age Discrimination Act 2004, Australian Human Rights Commission Act 1986, Disability Discrimination Act 1992, Racial Discrimination Act 1975, and Sex Discrimination Act 1984. These laws generally divide discrimination into direct discrimination and indirect discrimination.

Different laws define discrimination differently, so the important thing is to provide evidence that matches the applicable definition.

We hope that when faced with workplace discrimination, you can make timely use of the law as a weapon to protect yourself and help foster a fair and equal workplace environment.