Equal Opportunity

Equal opportunity

Effective employers encourage a diverse and inclusive workplace where everyone is treated fairly, differences are accepted, and people treat each other with tolerance and respect.

Most people are well aware of the issues surrounding racial discrimination and sexism at work, but there are a wide range of protected attributes that are covered by anti-discrimination laws.

Under various pieces of anti-discrimination and equal opportunity law, you cannot discriminate against or treat an employee or potential employee less favourably on the grounds of:

• Race or skin colour

• Sex or sexual orientation

• Age

• Physical or mental disability

• Marital status

• Family or carer responsibilities

• Pregnancy

• Religion or political opinion

• National extraction or social origin

• Union activity

Discrimination in the workplace is not a simple matter and can either be direct or indirect.

What is direct discrimination?

Direct discrimination happens when somebody is treated differently or unfairly on the basis of their protected attributes.

For example, an employer who decides to only interview young candidates for a software engineering role because older people “don’t know how to use the latest tech” is engaging in an act of direct age discrimination. Employers should be aware that even the recruitment process is protected by anti-discrimination laws.

What is indirect discrimination?

Indirect discrimination occurs when a requirement or condition appears to be neutral but has a disproportionate negative impact on particular groups.

For example, an employer requiring all workers to be over six feet tall for a particular role when there is no evidence a minimum height is justified could constitute a case of indirect discrimination. Though this condition is not discriminatory on its face, it would have a disproportionate impact on people less likely to meet the height requirement, including women.

The Australian Human Rights Commission

In Australia, cases of workplace discrimination are often raised with the Australian Human Rights Commission (AHRC).

The Australian Human Rights Commission is an independent third party which investigates complaints about breaches of human rights, including unlawful discrimination in the workplace.

Human rights recognise the value of every person, regardless of their background, where they live, what they look like, and what they think or believe.

Equal opportunity laws

The Human Rights and Equal Opportunity Act (1986) ensures that no one suffers workplace discrimination based on their protected attributes. In addition, discrimination on certain other grounds may also be prohibited by laws laid out in the Act.

The Fair Work Act (2009) contains numerous provisions protecting employees against discrimination in the workplace. The Act prohibits the inclusion of terms in a modern award or an enterprise agreement that discriminate against an employee on the basis of protected attributes.

More recently, Secure Jobs, Better Pay has made amendments to The Fair Work Act, changing legislation surrounding equal opportunity. The Act has been updated to include gender identity, intersex status, and breastfeeding in its list of protected attributes.

Employees who believe they have been the subject of workplace discrimination should lodge a complaint with The Australian Human Rights Commision, who have the federal powers to investigate claims and issue penalties.

Territory and state laws

Throughout Australia there are various territory and state laws that aim to enforce equal employment opportunity and prevent employment discrimination. Important territory and state-based legislation includes:

• Australian Capital Territory – Discrimination Act 1991

• New South Wales – Anti-Discrimination Act 1977

• Queensland – Anti-Discrimination Act 1991

• Victoria – Equal Opportunity Act 2010

• Northern Territory – Anti-Discrimination Act 1996

• South Australia – Equal Opportunity Act 1984

• Tasmania – Anti-Discrimination Act 1998

• Western Australia – Equal Opportunity Act 1984

While Australia’s equal opportunity and anti-discrimination laws set out the minimum standards for employers to follow, they can be difficult to understand and change frequently. You should always seek advice to clear up any doubts.

Employsure advisers can help you foster equal opportunities and follow Australian workplace legislation. For peace of mind, please call our FREE 24/7 Advice Line now on 1300 651 415.