Discrimination occurs when a person, or a group of people, are treated less favourably than another person or group because of their background or certain personal characteristics.
Unlawful workplace discrimination under the general protections in the Fair Work Act 2009 (FW Act) or under the relevant State-based Anti-Discrimination Acts and occurs when an employer takes adverse action against a person who is an employee or prospective employee because of one or more of the following attributes of the person:
- 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
- Additional attributes as defined under the relevant State Legislations.
What is adverse action?
Adverse action can include action that is unlawful if it is taken for a discriminatory reason. The FW Act describes a number of adverse actions.
Adverse action taken by an employer includes doing, threatening or organising any of the following:
- dismissing an employee
- injuring an employee in their employment
- altering an employee’s position to their detriment
- discriminating between one employee and other employees
- refusing to employ a prospective employee
- discriminating against a prospective employee on the terms and conditions in the offer of employment.
Who is covered by these protections?
It is unlawful for an employer to discriminate against an employee. This includes full time, part time and casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods of time or tasks.
It is also unlawful to refuse to hire a prospective employee based on one of the attributes listed above.
What is not considered unlawful discrimination?
Treating someone differently is not necessarily unlawful discrimination. Some different treatment such as general performance management may not be an unlawful discrimination issue. In terms of the FW Act, an action is only considered adverse action if it occurs due to one or more of the above attributes (race, sex, age, disability, etc). If this is not the basis of the action, it may not be considered an act of unlawful discrimination.
The FW Act also provides that in some circumstances, an action may not be considered discrimination.
This includes where the action:
- is permissible under state or territory anti-discrimination laws
- is based on the inherent requirements of the particular position concerned
- is taken against a staff member of an institution run in accordance with religious beliefs, and the action is taken in good faith and to avoid injury to those religious beliefs.
What do I do if I think I’ve been discriminated against in my employment?
Please complete a member support form through your member dashboard and we will assign a case manager to assist with your matter. Please follow these steps:
- Log in to your member dashboard
- Click on "Member Support Form"
- Complete the form and a member of our friendly team will be in touch within 24 business hours.