Workplace Discrimination Issue?
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What is workplace discrimination?

Discrimination under the Fair Work Act 2009 (Cth)

Unlawful workplace discrimination occurs when an employer takes ‘adverse action’ against an employee or prospective employee because of a personal attribute that is protected from discrimination:

• 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

These ‘general protections’ from workplace discrimination are set out in section 351 of the Fair Work Act 2009 (Cth), which relevantly states:

Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s 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.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed–taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

The fact this law is a ‘civil-remedy provision’ means that corporations and individuals are liable to court-imposed fines for breaching the law, as well as other orders such as injunctions to stop discriminatory conduct, reinstatement or compensation orders for those affected.

Other anti-discrimination laws

The Commonwealth government has a number of anti-discrimination laws that operate across Australia:

• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)

State and territory governments also have anti-discrimination laws that can apply to discrimination that occurs in a workplace context:

• Anti-Discrimination Act 1977 (NSW)
• Equal Opportunity Act 1984 (WA)
• Equal Opportunity Act 1984 (SA)
• Anti-Discrimination Act 1991 (QLD)
• Discrimination Act 1991 (ACT)
• Anti-Discrimination Act 1992 (NT)
• Equal Opportunity Act 1995 (VIC)
• Anti-Discrimination Act 1998 (TAS)

Anti-discrimination laws may be breached by discriminatory conduct in a workplace, even if it does not constitute ‘adverse action’ under the Fair Work Act 2009 (Cth). As such, a person who suffers discrimination may also seek redress in a human rights or anti-discrimination commission, such as the Australian Human Rights Commission (AHRC) or Queensland Human Rights Commission (QHRC).

How common is workplace discrimination?

Discrimination in the workplace can take different forms. A study by the Diversity Council of Australia on discrimination and harassment in the workplace showed the highest rates were experienced by people who are Aboriginal and Torres Strait Islander, people with non-Christian religious affiliations, people with disabilities, people who identify as LGBTIQ+, and young workers (under 30):

Workplace discrimination does occur. So do complaints of discrimination that are unfair or false. It is not always a case of the accuser lying about events. People can wrongly label something as “discrimination”. The context of an event or action may be misunderstood. In some cases, discrimination is permitted under the law.

Examples of workplace discrimination

The term ‘adverse action’ is defined in the Fair Work Act 2009 (Cth) and includes an employer discriminating against an employee by:

• dismissing an employee;
• injuring an employee in his or her employment;
• altering the position of the employee to the employee’s prejudice; or,
• discriminating between the employee and other employees.

The following three examples of unlawful workplace discrimination and the financial consequences that can result are based on the concepts of ‘discrimination’ and ‘adverse action’ under the Fair Work Act 2009 (Cth):

• Discriminatory action based on pregnancy resulted in a $61,000 pecuniary penalty order against an employer, as well as compensation of $164,097 for loss suffered and $10,000 for distress, hurt and humiliation (Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875).
• Dismissing an employee who was “always sick” resulted in a $16,500 pecuniary penalty against the employer, as it was found to constitute disability discrimination (Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080).
• Dismissing an employee who took carer’s leave to take his daughter to a doctor resulted in a $10,000 pecuniary penalty against the employer, as well as a $10,000 compensation order, as it was found to be discrimination based on family or carer’s responsibilities (Transport Workers’ Union of Australia v Atkins [2014] FCCA 1553).

The above examples of unlawful workplace discrimination show the seriousness of employers acting contrary to the general protections of employees.

Who can be liable for discrimination?

Unlawful workplace discrimination under the Fair Work Act 2009 (Cth) covers most employers, employees, independent contractors, people who have entered into a contract for services with an independent contractor, and industrial associations. It also includes prospective employers, prospective employees, and people proposing to enter into a contract for services with an independent contractor.

This means that it is not just employers who can face discrimination claims for adverse action under the Fair Work Act 2009 (Cth), employees can also be liable for discriminatory acts against their employer in certain circumstances. Other anti-discrimination laws in Australia extend liability to companies and individuals in ways that are broader than unlawful workplace discrimination under the Fair Work Act 2009 (Cth).

What is workplace discrimination?

Discrimination under the Fair Work Act 2009 (Cth)

Unlawful workplace discrimination occurs when an employer takes ‘adverse action’ against an employee or prospective employee because of a personal attribute that is protected from discrimination:

• 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

These ‘general protections’ from workplace discrimination are set out in section 351 of the Fair Work Act 2009 (Cth), which relevantly states:

Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s 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.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed–taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

The fact this law is a ‘civil-remedy provision’ means that corporations and individuals are liable to court-imposed fines for breaching the law, as well as other orders such as injunctions to stop discriminatory conduct, reinstatement or compensation orders for those affected.

Other anti-discrimination laws

The Commonwealth government has a number of anti-discrimination laws that operate across Australia:

• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)

State and territory governments also have anti-discrimination laws that can apply to discrimination that occurs in a workplace context:

• Anti-Discrimination Act 1977 (NSW)
• Equal Opportunity Act 1984 (WA)
• Equal Opportunity Act 1984 (SA)
• Anti-Discrimination Act 1991 (QLD)
• Discrimination Act 1991 (ACT)
• Anti-Discrimination Act 1992 (NT)
• Equal Opportunity Act 1995 (VIC)
• Anti-Discrimination Act 1998 (TAS)

Anti-discrimination laws may be breached by discriminatory conduct in a workplace, even if it does not constitute ‘adverse action’ under the Fair Work Act 2009 (Cth). As such, a person who suffers discrimination may also seek redress in a human rights or anti-discrimination commission, such as the Australian Human Rights Commission (AHRC) or Queensland Human Rights Commission (QHRC).

How common is workplace discrimination?

Discrimination in the workplace can take different forms. A study by the Diversity Council of Australia on discrimination and harassment in the workplace showed the highest rates were experienced by people who are Aboriginal and Torres Strait Islander, people with non-Christian religious affiliations, people with disabilities, people who identify as LGBTIQ+, and young workers (under 30):

Workplace discrimination does occur. So do complaints of discrimination that are unfair or false. It is not always a case of the accuser lying about events. People can wrongly label something as “discrimination”. The context of an event or action may be misunderstood. In some cases, discrimination is permitted under the law.

Examples of workplace discrimination

The term ‘adverse action’ is defined in the Fair Work Act 2009 (Cth) and includes an employer discriminating against an employee by:

• dismissing an employee;
• injuring an employee in his or her employment;
• altering the position of the employee to the employee’s prejudice; or,
• discriminating between the employee and other employees.

The following three examples of unlawful workplace discrimination and the financial consequences that can result are based on the concepts of ‘discrimination’ and ‘adverse action’ under the Fair Work Act 2009 (Cth):

• Discriminatory action based on pregnancy resulted in a $61,000 pecuniary penalty order against an employer, as well as compensation of $164,097 for loss suffered and $10,000 for distress, hurt and humiliation (Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875).
• Dismissing an employee who was “always sick” resulted in a $16,500 pecuniary penalty against the employer, as it was found to constitute disability discrimination (Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080).
• Dismissing an employee who took carer’s leave to take his daughter to a doctor resulted in a $10,000 pecuniary penalty against the employer, as well as a $10,000 compensation order, as it was found to be discrimination based on family or carer’s responsibilities (Transport Workers’ Union of Australia v Atkins [2014] FCCA 1553).

The above examples of unlawful workplace discrimination show the seriousness of employers acting contrary to the general protections of employees.

Who can be liable for discrimination?

Unlawful workplace discrimination under the Fair Work Act 2009 (Cth) covers most employers, employees, independent contractors, people who have entered into a contract for services with an independent contractor, and industrial associations. It also includes prospective employers, prospective employees, and people proposing to enter into a contract for services with an independent contractor.

This means that it is not just employers who can face discrimination claims for adverse action under the Fair Work Act 2009 (Cth), employees can also be liable for discriminatory acts against their employer in certain circumstances. Other anti-discrimination laws in Australia extend liability to companies and individuals in ways that are broader than unlawful workplace discrimination under the Fair Work Act 2009 (Cth).

What is workplace discrimination?

Discrimination under the Fair Work Act 2009 (Cth)

Unlawful workplace discrimination occurs when an employer takes ‘adverse action’ against an employee or prospective employee because of a personal attribute that is protected from discrimination:

• 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

These ‘general protections’ from workplace discrimination are set out in section 351 of the Fair Work Act 2009 (Cth), which relevantly states:

Discrimination

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s 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.

Note: This subsection is a civil remedy provision (see Part 4‑1).

(2) However, subsection (1) does not apply to action that is:

(a) not unlawful under any anti‑discrimination law in force in the place where the action is taken; or

(b) taken because of the inherent requirements of the particular position concerned; or

(c) if the action is taken against a staff member of an institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed–taken:

(i) in good faith; and

(ii) to avoid injury to the religious susceptibilities of adherents of that religion or creed.

The fact this law is a ‘civil-remedy provision’ means that corporations and individuals are liable to court-imposed fines for breaching the law, as well as other orders such as injunctions to stop discriminatory conduct, reinstatement or compensation orders for those affected.

Other anti-discrimination laws

The Commonwealth government has a number of anti-discrimination laws that operate across Australia:

• Age Discrimination Act 2004 (Cth)
• Disability Discrimination Act 1992 (Cth)
• Racial Discrimination Act 1975 (Cth)
• Sex Discrimination Act 1984 (Cth)

State and territory governments also have anti-discrimination laws that can apply to discrimination that occurs in a workplace context:

• Anti-Discrimination Act 1977 (NSW)
• Equal Opportunity Act 1984 (WA)
• Equal Opportunity Act 1984 (SA)
• Anti-Discrimination Act 1991 (QLD)
• Discrimination Act 1991 (ACT)
• Anti-Discrimination Act 1992 (NT)
• Equal Opportunity Act 1995 (VIC)
• Anti-Discrimination Act 1998 (TAS)

Anti-discrimination laws may be breached by discriminatory conduct in a workplace, even if it does not constitute ‘adverse action’ under the Fair Work Act 2009 (Cth). As such, a person who suffers discrimination may also seek redress in a human rights or anti-discrimination commission, such as the Australian Human Rights Commission (AHRC) or Queensland Human Rights Commission (QHRC).

How common is workplace discrimination?

Discrimination in the workplace can take different forms. A study by the Diversity Council of Australia on discrimination and harassment in the workplace showed the highest rates were experienced by people who are Aboriginal and Torres Strait Islander, people with non-Christian religious affiliations, people with disabilities, people who identify as LGBTIQ+, and young workers (under 30):

Workplace discrimination does occur. So do complaints of discrimination that are unfair or false. It is not always a case of the accuser lying about events. People can wrongly label something as “discrimination”. The context of an event or action may be misunderstood. In some cases, discrimination is permitted under the law.

Examples of workplace discrimination

The term ‘adverse action’ is defined in the Fair Work Act 2009 (Cth) and includes an employer discriminating against an employee by:

• dismissing an employee;
• injuring an employee in his or her employment;
• altering the position of the employee to the employee’s prejudice; or,
• discriminating between the employee and other employees.

The following three examples of unlawful workplace discrimination and the financial consequences that can result are based on the concepts of ‘discrimination’ and ‘adverse action’ under the Fair Work Act 2009 (Cth):

• Discriminatory action based on pregnancy resulted in a $61,000 pecuniary penalty order against an employer, as well as compensation of $164,097 for loss suffered and $10,000 for distress, hurt and humiliation (Sagona v R & C Piccoli Investments Pty Ltd & Ors [2014] FCCA 875).
• Dismissing an employee who was “always sick” resulted in a $16,500 pecuniary penalty against the employer, as it was found to constitute disability discrimination (Pavolvich v Atlantic Contractors Pty Ltd [2012] FMCA 1080).
• Dismissing an employee who took carer’s leave to take his daughter to a doctor resulted in a $10,000 pecuniary penalty against the employer, as well as a $10,000 compensation order, as it was found to be discrimination based on family or carer’s responsibilities (Transport Workers’ Union of Australia v Atkins [2014] FCCA 1553).

The above examples of unlawful workplace discrimination show the seriousness of employers acting contrary to the general protections of employees.

Who can be liable for discrimination?

Unlawful workplace discrimination under the Fair Work Act 2009 (Cth) covers most employers, employees, independent contractors, people who have entered into a contract for services with an independent contractor, and industrial associations. It also includes prospective employers, prospective employees, and people proposing to enter into a contract for services with an independent contractor.

This means that it is not just employers who can face discrimination claims for adverse action under the Fair Work Act 2009 (Cth), employees can also be liable for discriminatory acts against their employer in certain circumstances. Other anti-discrimination laws in Australia extend liability to companies and individuals in ways that are broader than unlawful workplace discrimination under the Fair Work Act 2009 (Cth).