Summary
- Brief Description of Anti-Discrimination Laws
Discrimination is broadly defined as the treatment of an individual or group more favourably or less favourably than another individual or group, on the basis of a specified attribute.
Discrimination
Anti-discrimination legislation makes it unlawful to discriminate on the basis of particular attributes. The attributes specified in the legislation in each jurisdiction differ slightly. However, in general they include the following:
- race, colour, nationality, descent and ethnic, ethno-religious and national origin;
- sex (which extends to pregnancy or potential pregnancy and breastfeeding);
- marital or relationship status;
- disability;
- sexual orientation;
- gender identity or intersex status;
- family responsibilities; and
- age.
The legislation requires that the act of discrimination occurs “on the ground of” or “by reason of” a person’s status, such as their sex or race. The aggrieved person must show that other persons in the same or similar circumstances were not subject to the less favourable treatment and that the reason for the less favourable treatment was the aggrieved person’s sex, race or other attribute.
The legislation only renders discriminatory conduct unlawful if it occurs in specified contexts, one of which is employment.
Certain types of behaviour may be classified as direct discrimination. This will occur in circumstances where a person who has a particular attribute (for example, is of a particular sex or race, or has a disability) is treated less favourably because of that attribute.
Other types of behaviour may be classified as indirect discrimination. Indirect discrimination is concerned with conditions or practices that may have a discriminatory effect upon particular groups of people as compared to others. For example, requiring all employees to be a certain height may have a discriminatory effect on employees of a particular race.
Harassment
The Commonwealth, State and Territory legislation dealing with harassment are all similarly expressed. Under the Sex Discrimination Act 1984 (Cth), one person sexually harasses another where there is:
- an unwelcome sexual advance; or
- an unwelcome request for sexual favours; or
- other unwelcome conduct of a sexual nature; and
- the above conduct occurs in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the other person would be offended, humiliated, or intimidated.
Recently, there have been two key amendments to the Sex Discrimination Act 1984 (Cth). The Act now prohibits:
- harassment on the ground of sex. Harassment on the ground of sex occurs where, by reason of the sex of the aggrieved person, or a characteristic that appertains generally or is generally imputed to persons of that sex, another person engages in unwelcome conduct of a demeaning nature in relation to the aggrieved person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. This means that it is now unlawful to harass someone on the basis of their sex, even where there is no sexual element to the conduct.
- conduct which subjects someone to a workplace environment that is hostile on the ground of sex. Such conduct may not necessarily be directed at a particular person, but nonetheless results in a hostile working environment. This may include displaying obscene or pornographic materials, general sexual banter, inuendo, and offensive jokes, which result in one sex feeling unwelcome or excluded.
Harassment on the grounds of disability and racial vilification are also prohibited in Commonwealth and State and Territory legislation.
Victimisation
Anti-discrimination legislation generally prohibits victimisation of complainants for the reason that they have, among other prohibited grounds:
- brought a complaint or intend to bring a complaint; or
- made allegations that the perpetrator has engaged in unlawful conduct of a kind prohibited by the legislation.
Central to the concept of victimisation is the requirement that the complainant suffered a “detriment” and that the perpetrator “subjected” the complainant to the “detriment” by reason of them asserting their rights under the legislation (or other prohibited reasons).
In addition, the Corporations Act 2001 (Cth) specifically prohibits victimisation of a whistleblower, being someone who has made a “protected disclosure”. The Corporations Act 2001 (Cth) also provides that if a whistleblower suffers damage because of such victimisation, the whistleblower can independently claim compensation for that damage from the offender.
Federal vs State Anti-Discrimination Laws
In the Federal jurisdiction, each ground of discrimination is contained in a separate Act, namely the:
- Racial Discrimination Act 1975 (Cth);
- Age Discrimination Act 2004 (Cth);
- Disability Discrimination Act 1992 (Cth); and
- Sex Discrimination Act 1984 (Cth).
The Australian Human Rights Commission Act 1986 (Cth) establishes the Australian Human Rights Commission (“AHRC”) and sets out the process and remedies available for the enforcement of rights under each of the above legislation.
In the State jurisdictions, the various forms of unlawful conduct are generally set out in one centralised Act:
- Australian Capital Territory – Discrimination Act 1991;
- New South Wales – Anti-Discrimination Act 1977;
- Northern Territory – Anti-Discrimination Act 1996;
- Queensland – Anti-Discrimination Act 1991;
- South Australia – Equal Opportunity Act 1984;
- Tasmania – Anti-Discrimination Act 1998;
- Victoria – Equal Opportunity Act 2010;
- Western Australia – Equal Opportunity Act 1984.
- Extent of Protection
– protected characteristics, direct vs. indirect (disparate treatment/direct discrimination vs. disparate impact/indirect discrimination), protection against retaliation/victimisation, affirmative action requirements
Fair Work Act 2009 (Cth): General Protections (“Adverse Action” Provisions)
The Fair Work Act 2009 applies to “national system employers” and “national system employees”. Foreign corporations will be bound by the Fair Work Act where they engage employees within Australia (Jones v QinetiQ Pty Ltd t/a QinetiQ Australia [2013] Fair Work Commission 3302).
The general protections provisions in the in the Fair Work Act proscribe certain “adverse action” being taken by one person against another for a prohibited reason. Adverse action in relation to an employee means dismissing the employee, injuring the employee in their employment, altering the employee’s position to the employee’s prejudice, or discriminating between the employee and other employees of the employer. It also includes threatening or organising to take such action.
Protection from adverse action primarily applies in three areas:
(1) In relation to a person’s “workplace rights”. Workplace rights are a specified range of employment entitlements and the freedom to exercise and enforce those entitlements. A person is not only protected from adverse action because they have a workplace right, but also because they exercise, propose to exercise, or do not exercise a workplace right.
(2) In relation to industrial activities. These provisions protect the right to be, or not be, a member or officer of an industrial association; to participate, or not participate, in lawful industrial activities; and to not participate in unlawful industrial activity.
(3) In relation to discrimination. This protection prohibits an employer from taking adverse action against an employee or a prospective employee on the basis of a proscribed discriminatory ground, including 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. In the case of general protections claims based on discrimination, employers can raise a defence based on the “inherent requirements” of the job.
A person can make an application to the Fair Work Commission for protection from adverse action.
Fair Work Act: The Anti-Bullying Regime
The Fair Work Act’s anti-bullying regime came into effect on 1 January 2014. Under this regime, any “worker” at a constitutionally covered business who reasonably believes that he or she has been bullied at work may apply to the Fair Work Commission to stop the bullying. “Bullying” for the purpose of these provisions is defined as when a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work and the behaviour creates a risk to health and safety. A “worker”, for the purposes of the regime, is defined broadly, and includes employees, contractors, subcontractors, outworkers, apprentices, trainees, volunteers and work experience students.
Importantly, however, the worker must be working at a “constitutionally-covered business”, which does not include State Governments or unincorporated bodies (which include partnerships, sole traders, not-for-profit associations, volunteer associations and other corporations not engaged in trading or financial activities).
The Fair Work Commission must deal with an application for an anti-bullying order within 14 days of the application being made. The Commission must be convinced that a worker has been bullied at work, and that there is a risk that the bullying will continue. The mechanism is designed to stop workplace bullying and does not apply to workers whose employment has already ended.
The Commission may make any order that it considers appropriate to stop the bullying, except for an order for the payment of a pecuniary amount. Orders are not limited to the employer but could also apply to other parties such as co-workers or visitors to the workplace.
- Protections Against Harassment
Both Federal and State discrimination legislation provide for a process by which complaints of harassment are made to an administrative body that will investigate the complaint and attempt to achieve a settlement between the parties. If the matter does not resolve the complainant may seek to have the complaint heard by a tribunal or court.
In the State systems, the matter is typically handled by a board that specialises in dealing with equal opportunity matters (such as Anti-Discrimination NSW). As a first step, the board will conduct an investigation into the complaint. The complainant’s written complaint is given to the respondent to allow the respondent to prepare a response. Both parties may be asked to provide further information.
If the board considers that there appears to have been unlawful conduct and that the matter may be best resolved by the parties discussing the matter face-to-face, the next step is usually a conciliation conference. If the conciliation conference fails to resolve the matter, the complainant usually has the right to refer the complaint to a Tribunal (such as the NSW Civil and Administrative Tribunal in NSW) for a hearing and decision.
In the Federal system, complaints are made initially to the AHRC, which will attempt a conciliation between the parties. If this is unsuccessful, the complainant may have the right to make an application to the Federal Court or the Federal Circuit and Family Court of Australia.
Pursuant to recent amendments to the Fair Work Act, employees can now also make a complaint to the Fair Work Commission about sexual harassment. The Commission can deal with those complaints by making a range of orders, including compensation to victims.
- Employer’s Obligation to Provide Reasonable Accommodations
– e.g. the obligation to accommodate disabled persons or employee religious practices
Under anti-discrimination legislation, there is an obligation on employers to provide reasonable adjustments (or reasonable accommodation) for employees with disability.
Under the Disability Discrimination Act 1992 (Cth), an adjustment is taken to be reasonable unless the employer establishes that it would impose “unjustifiable hardship”. In determining whether a hardship would be an unjustifiable hardship, all relevant circumstances of the particular case must be taken into account, including the following:
- the nature of the benefit or detriment likely to accrue to, or to be suffered by, any person concerned;
- the effect of the disability of any person concerned;
- the financial circumstances, and the estimated amount of expenditure required to be made by the employer; and
- the availability of financial and other assistance to the employer.
Similar adjustments are available under Victorian legislation. Under the Equal Opportunity Act 2010 (Vic), section 20 states that “the employer must make reasonable adjustments unless the person or employee could not or cannot adequately perform the genuine and reasonable requirements of the employment even after the adjustments are made”.
Although not expressly stated as an obligation to provide reasonable accommodations, the effect of prohibition on indirect discrimination is to require employers to consider whether conditions and requirements or practices in the workplace, which impact adversely on particular employees, are reasonable in the circumstances.
- Remedies
The time limit for lodging a complaint with the AHRC for breach of a federal anti-discrimination legislation is 24 months from when the conduct occurred.
Courts and tribunals have the discretion to award a range of different remedies if they are satisfied that an employer has contravened anti-discrimination legislation. The most common remedies are a declaration to the effect that unlawful discrimination has occurred and an award of damages to compensate the aggrieved person for the loss they have suffered as a result of the unlawful discrimination.
Courts also have the power to grant injunctive relief (i.e., an order compelling or prohibiting certain conduct), order an apology, order that an employee be reinstated to their former position, order a retraction and vary the terms of an employment contract. It is unsettled whether the courts have the power to award exemplary or punitive damages that go beyond mere compensation. The present state of authority suggests that exemplary or punitive damages are not available.
- Other Requirements
– e.g. quotas, diversity, affirmative action
