The Australian Human Rights Commission Act 1986 (Cth) protects people from discrimination in employment because of their religion, political opinion, national extraction, nationality, social origin, medical record, criminal record or trade union activity. A number of these characteristics are also covered by the Fair Work Act 2009 (Cth). Some state and territory laws protect people from discrimination on the basis of additional personal characteristics.
Discrimination occurs when a person, or a group of people, is treated less favourably than another person or group because of their background or certain personal characteristics.
Federal discrimination laws protect people from discrimination of the basis of their:
Discrimination can happen at different points in an employment relationship, including:
Australian law generally defines direct discrimination to mean that a person is treated ‘less favourably’ on the basis of an attribute that that person may possess (such as race or sex).
An example of direct discrimination would be where an employer denies a female job applicant a position simply because she is a woman. In these circumstances the woman is treated ‘less favourably’ than her male colleagues because of the attribute of being female.
Indirect discrimination occurs where policies or practices have a discriminatory effect because they affect different groups of people disproportionately. For example, it would be indirect discrimination if an employer required job applicants to be above a certain height because fewer women than men would be able to meet these height requirements.
Indirect discrimination may be lawful where the policy or practice is genuinely reasonable in the circumstances.
It is often difficult and complex to prove indirect discrimination and we recommend that you seek legal advice if this is the basis of your complaint.
Your complaint should be on one of the grounds specified in the relevant legislation and must have occurred in one of the areas specified in the legislation. For example, the grounds under NSW law include race, sex and disability and the areas include employment, education and accommodation.
Under discrimination law, it is unlawful to treat a person less favourably on the basis of particular protected attributes such as a person’s sex, race, disability or age. Treating a person less favourably can include harassing or bullying a person. The law also has specific provisions relating to sexual harassment, racial hatred and disability harassment.
It is important to understand that a one-off incident can constitute harassment.
The Age Discrimination Act 2004 protects individuals from discrimination on the basis of age in employment, education, accommodation and the provision of goods and services.
The Sex Discrimination Act 1984 prohibits harassment in the workplace by employers, co-workers and other “workplace participants”, such as partners, commission agents and contract workers. Sexual harassment is broadly defined as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.
The Disability Discrimination Act 1992 prohibits harassment in the workplace based on or linked to a person’s disability or the disability of an associate.
The Racial Discrimination Act 1975 prohibits offensive behaviour based on racial hatred. Racial hatred is defined as something done in public that offends, insults or humiliates a person or group of people because of their race, colour or national or ethnic origin.
All incidents of harassment – no matter how large or small or who is involved – require employers or managers to respond quickly and appropriately. If issues are left unaddressed, a hostile working environment can develop which can expose employers to further complaints.
The Fair Work Amendment Act 2013 defines workplace bullying as repeated unreasonable behaviour by an individual towards a worker which creates a risk to health and safety.
Bullying behaviour can range from obvious verbal or physical assault to subtle psychological abuse. It can include:
It’s a good idea to keep a diary to record incidents including how you were feeling at the time and if anyone else witnessed the bullying. This makes it easier to show or prove specific examples of the bullying behaviour.
Keep any related communications including abusive letters, screenshots of social media, SMS or emails. We also encourage you to ask witnesses if they will support you when speaking to someone.
A person who has a complaint about discrimination or harassment may have rights under federal as well as state or territory law.
As of 1 January 2014, the Fair Work Ombudsman can receive complaints from workers who believed they have been bullied at work. If you are a witness to any discrimination, harassment or bullying and want to remain anonymous, the Fair Work Ombudsman will take your complaint anonymously.
The Australian Human Rights Commission has the statutory power to receive, investigate and conciliate complaints of unlawful discrimination under Australia’s anti-discrimination legislation. If you believe you have been unlawfully discriminated against you can lodge a complaint with the commission.
AussieLegal offers affordable legal kits and paralegal services on a wide range of legal matters. Whilst we are not a law firm and are not permitted to provide legal advice, we work under a collaborative arrangement with a panel of independent law firms across Australia. Thus, allowing us to help our clients with more complex legal tasks that require formal legal advice.
Need more options? Call us on 1300 728 200 to discuss your situation with one of our consultants.
