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Workplace Discrimination

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. As an employer, you may be required to take steps to prevent this from happening in the workplace.

What Is Unlawful Discrimination?

Unlawful discrimination is discrimination based on a protected attribute arising from State and Federal discrimination legislation.

Australian legislation protects people from being discriminated on the basis of their:

  • age
  • race, colour, national or ethnic origin or immigrant status
  • religion or political opinion
  • sex, sexual orientation, or gender identity
  • marital status
  • pregnancy or breastfeeding
  • family or career responsibilities
  • physical or mental disability

Additional attributes may be specified in state and territory specific anti-discrimination legislation.

Discriminatory practices can happen at different points in the employment relationship, including:

  • when recruiting and selecting staff
  • in the terms, conditions, and benefits offered as part of employment
  • who is considered or selected for promotion
  • who is considered and selected for redundancy or dismissal

What Is Classed As Discrimination?

Discriminatory conduct may include:

  • direct discrimination – treating one employee less favourably than another because of an attribute eg. age, gender, religion or belief, disability or sexual orientation.
  • indirect discrimination – imposing a requirement or practice that unnecessarily disadvantages a certain group, for example, banning beards could disadvantage certain religious employees.
  • victimisation – treating someone less favourably than others because they have complained about discrimination on the basis of an attribute eg. age, gender, religion or belief, disability or sexual orientation

What Is Adverse Action In The Workplace?

The concept of adverse action or threatened adverse action is an essential component of the Fair Work Act 2009 ( the Act).

The Act protects certain employee rights including workplace rights, and engaging in industrial activities, and offers protection from discrimination and sham arrangements. These are called the general protections. Workplace rights include any benefits or responsibilities an employee may have under any workplace law, award or registered agreement, or order made by a body, including making a complaint or query regarding their employment, or initiating or participating in proceedings.

An employer must not take any adverse action against an employee or prospective employee because that person has, or has exercised or intends to exercise, a workplace right.

Adverse action is anything an employer may do that affects the employee negatively. Adverse action is unlawful if it is taken against an employee, a former employee or a prospective employee for a specific, protected reason or because of certain attributes.

In relation to a current employee, adverse action includes:

  • dismissing the employee
  • injuring the employee in his or her employment, e.g. not giving them their legal entitlements
  • altering the position of the employee to the employee’s disadvantage
  • discriminating between the employee and other employees, ie treating them differently to others
  • threatening to do any of the above

In relation to a prospective employee, adverse action includes:

  • refusing to employ the prospective employee
  • discriminating against the prospective employee in the terms or conditions on which the employer offers to employ them
  • threatening to do any of the above

Adverse Action does not include any action authorised by legislation, or if an employer stands an employee down for engaging in industrial action or where the contract permits it in the circumstances.

Adverse Action And Discrimination

In terms of discrimination, it is unlawful for an employer to take adverse action against a person who is an employee, former employee or prospective employee because of certain attributes, ie. the person’s 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.

Treating someone differently is not necessarily unlawful discrimination. Some different treatment such as general performance management may not be unlawful discrimination unless it is because of one or more protected employee attributes.

BrightHR can help you keep track of your employees’ details. It allows you to create employee profiles and store them along with key documents such as policies, procedures and handbooks, securely in the cloud where you can control your employee’s access. You can upload updated polices and handbooks, set reminders and notifications of key dates, and get read receipts once your employees have accessed the relevant documents.

Remedies Or Penalties For Unlawful Discrimination

The Fair Work Act aims to protect against unfair treatment and unlawful discrimination, by providing effective relief for persons who have been discriminated against, victimised, or adversely affected by unlawful behaviour. Importantly, the Act permits Fair Work Inspectors to investigate allegations of unlawful discrimination in employment and to seek penalties for contraventions.

Under the Act, there are a number of remedies and penalties for adverse action on discriminatory grounds. Where the Federal Court of Australia determines that a person has been discriminated against, the court may make any order that it considers appropriate, including orders for injunctions, reinstatement and/or compensation.

Australia also has other federal, (as well as state and territory anti-discrimination laws) that prohibit discrimination, harassment, victimisation and bullying in various circumstances including in the workplace, such as the Sex Discrimination Act 1984 or the Disability Discrimination Act 1992.  In addition, employees can complain to the Australian Human Rights Commission in instances of workplace discrimination. The Australian Human Rights Commission tries to resolve matters through conciliation.

Bullying, Harassment, And Workplace Conflict

Bullying and harassment does not necessarily constitute unlawful discrimination under the Fair Work Act unless the behaviour can be shown to be adversely linked to a ground or attribute listed above. Forms of bullying or harassment which do not fall within the jurisdiction of the Fair Work Ombudsman are dealt with by the Fair Work Commission or through Workplace Health and Safety legislation. Visit Employsure’s guide on bullying and harassment for more information.

BrightHR and BrightSafe offer online learning modules that you can use to train staff particularly in respect of their health and safety obligations, which can include bullying and harassment.

It is recommended that an employer seek independent legal advice if any claim is lodged against them. Employsure can help you better understand how to take steps to prevent discriminatory practices in your business. Contact Employsure today on 1300 207 182 for free initial advice.

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Frequently Asked Questions

  • What Is Workplace Discrimination In Australia?

    Workplace Discrimination is when an employer takes adverse action against a prospective employee, employee or contractor because of a protected attribute.

  • What Are Some Types Of Discrimination?

    • direct – treating one employee less favourably than another because of their age, gender, religion or belief, disability or sexual orientation.
    • indirect – imposing a requirement or practice that unnecessarily disadvantages a certain group, for example women.
    • victimisation – treating someone less favourably than others because they have complained about discrimination on the basis of age, gender, religion or belief, disability or sexual orientation.
  • Can An Employee Sue An Employer For Discrimination?

    Yes. An employee can lodge a claim against an employer for discrimination.

  • What Are Three Examples Of Actions That Could Be Considered Discrimination In A Workplace?

    • Not promoting someone into a position they are qualified for because they have a mental disability
    • Not hiring an older person for a retail role because they do not fit the young ‘fresh’ image of the store.
    • Paying someone less to do the same job as their counterparts because of their ethnic origins.
  • What Is Adverse Action In The Fair Work Act?

    All employees have protected rights at work. A number of the general protections provisions in the Fair Work Act aim to protect (prospective) employees from adverse action taken because of a particular proscribed reason or because of certain attributes.

    Adverse action’ includes action taken by an employer which ‘injures the employee in their employment and can include loss of pay or not giving them their legal entitlements, demotion, dismissal, or any circumstances where the employee is treated differently (ie negatively) to the manner in which he or she is ordinarily treated because the employee has certain attributes or has, or exercises a workplace or protected right, or engages in industrial activity.

  • How Can We Prevent Adverse Action?

    It is recommended that employers understand the law and the potential of a claim being lodged, and that an employer can show clearly by means of a document trail that any adverse action taken was not unlawful.

  • How Can Discrimination In The Workplace Be Prevented?

    • Encourage employees to respect one another and their differences
    • Educate all your employees as to what constitutes discrimination and their rights and responsibilities in the workplace
    • Develop and implement workplace policies that:
      • prohibit discrimination in the workplace, and
      • provide a framework on how to respond to discrimination if it occurs, and
      • offer complaint and resolution processes that deal with complaints promptly and in confidence
    • Make sure all employees are across these workplace policies and processes
    • Train managers and supervisors on how to respond to discrimination in the workplace and implement the policies and procedures. Make sure they are setting the right example.
    • Ensure the policies and procedures are enforced consistently
    • Review the policies and procedures regularly, identify any risk factors that may occur in terms of workforce changes and put measures in place to mitigate them and update policies if necessary.

About Employsure

Employsure is one of Australia’s largest workplace relations advisers to small- and medium-businesses, with over 29,000 clients. We take the complexity out of workplace legislation to help small business employers protect their business and their people.

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