What is discrimination?

Unlawful workplace discrimination occurs when an employer takes adverse action against you because of a protected attribute — not because of your performance or conduct. The reason behind the action is what matters.

It is prohibited under the Fair Work Act for national system employees, and under state and territory anti-discrimination legislation for those covered by state systems. Both frameworks protect the same core principle: your employer cannot treat you adversely because of who you are.

Why do Australian discrimination protections exist?

The Commonwealth of Australia is a signatory to the following intenational laws, significantly: 

• the International Labour Organization's Discrimination (Employment and Occupation) Convention, 1958 (ILO Convention No. 111) – which extends the anti-discrimination rights people enjoy in public life to employment; and
• the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) – which is currently mentioned in some State industrial relations laws and also attached to the Australian Human Rights Commission laws, and others like
• the UN Convention on the Rights of Persons with Disabilities (CRPD).

Our discrimination protections that we find in industrial, human rights, and equal opportunity laws are therefore a ratification of the international principles participating states have aspired to. 

What are the protected attributes?

Under the federal protections, your employer cannot take adverse action against you because of:

• Race, colour, national extraction or social origin
• Sex, pregnancy, gender identity, Sexual orientation
• Age
• Physical or mental disability
• Religious belief or activity
• A characteristic resulting from the above; nor
• Association to someone with the above
  

And then state and territory equal opportunity laws extend these protections to a broader range of attributes— covering additional attributes such as:

• breastfeeding,

• political belief or activity,
• marital status or family/carer's responsibilities

• irrelevant criminal record. 

It's always good to check your State or Territories human rights or equal opportunity commission webpages for what is protected in your jurisdiction. 

What counts as adverse action in employment?

Adverse action for a discriminatory reason can include an employer doing, threatening, or organising any of the following:

• Dismissing you
• Injuring you in your employment
• Altering your role or conditions to your detriment
• Treating you differently from other employees
• Refusing to hire you as aprospective employee
• Offering a prospective employee less favourable terms

This covers all employees — full time, part time, casual, probationary, apprentices, trainees, and fixed-term — as well as prospective employees. It can also extend to you trading as an individual independent contractor in some circumstances (but doesn't protect discrimination against corporations). 

What is NOT unlawful discrimination?

Treating someone differently is not automatically unlawful. The action must be taken because of a protected attribute without another reasonable explanation or exception like:

• Genuine performance management based on conduct or output
• Inherent requirements of the role (e.g. a physical requirement genuinely necessary for the position)
• Religious institutions acting in good faith to avoid injury to their religious beliefs
• Actions permitted under applicable state or territory anti-discrimination law (e.g. to comply with OH&S or WHS safety laws, public health edicts etc.)

⏰ Time limits vary

Time limits vary depending on which pathway we are talking about. They also may vary due to amendment, but as of the time of writing – 

Claiming discrimination against an employer in an industrial tribunal like the Fair Work Commission has varying time limits: 

• 21 days from dismissal – if the alleged discrimination includes a dismissal action; or
• 6 years for non-dismissal discrimination – which is something that would require going to Court to decide. 

Time limits for complaining through the human rights and equal opportunity comisions the time limitation for employment discrimination is generally:

• 12 months – These complaints are often first lodged with the AHRC, VEOHRC, QHRC for conciliation; but sometimes people can go straight to Court if they prefer. 

Time limitations can be extended, but this is only for persuasive extenuating reasons or circumstances. 

Think this might apply to you?

Discrimination claims can run through multiple frameworks — the Fair Work Commission, a state industrial tribunal, or an anti-discrimination (human rights or equal opportunity) body — and the right pathway depends on your jurisdiction and circumstances. If they don't resolve at conciliation, they often require going to Court or a formal Tribunal.

It can be difficult to navigate this alone.

Are you already a subscriber?

Lodge a Member Support Form and our industrial team will assess whether unfair dismissal, general protections, or another pathway is right — and whether your claim falls under federal or state law.

→ Log in at member.redunion.com.au → find "Get Help?" → click "Member Support Form".

Not a member?

We can't assist with pre-existing issues, but if you'd like to understand your options going forward, you can try to book a 20-minute chat with our team. Please note this is a general overview of what might be available should you join — it is not industrial advice.

It's best to have your membership active in case a circumstance arises.

Ready to join?

To sign-up directly via the sign-up form: 

1. Visit the signup form relevant to your industry (Nursing / Midwifery | Allied Health | Education | Officer | Other | New Zealand);
2. Tick "Yes" when prompted about pre-existing issues;
3. Wait for the onboarding emails after that's received –>
4. You can fill in an Member Support Form (be sure to tick "Yes" to the pre-existing question – our teams expect honesty on forms).

Good to Know

Discrimination and general protections overlap If your employer took adverse action against you (demotion, dismissal, changed conditions) for a discriminatory reason, you may have both a discrimination claim and a general protections claim. These run through different bodies.

Sexual harrassment is included as sex discrimination and treated very seriously, there are more provisions protecting against sexual harrassment and assault within the workplace which can be difficult or distressing to navigate without help. Speak to someone.

What can I do for help? If you're unsure, get help. You might also want to contact your current union (if you have one), your state's law society's 'find a solicitor' service, or a Community Legal Centre.

Needs updating?

Please let our team know if this article seems out of date — we're always looking to improve.