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Discrimination.

Discrimination.

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. As an employer, you need to prevent this from happening in the workplace.

Unlawful discrimination in the workplace has negative consequences for both employers and employees. Discriminatory practices can have an impact upon the commercial reputation of a business, adversely affect productivity, performance, staff commitment and morale, as well as the attraction and retention of skilled staff. Conversely, the benefits of a workplace free of unlawful discrimination are significant. Such environments foster employee engagement and promotion of merit and excellence, leading to greater productivity.

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

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?

Various discriminatory conducts include:

  • 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, banning beards could disadvantage certain religious employees
  • 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

Adverse action.

The concept of adverse action or threatened adverse action is an essential component of the Fair Work Act 2009 discrimination protections. The Fair Work Ombudsman cannot take any action with respect to discrimination where there has been no adverse action.

In relation to a current employee, adverse action includes:

  • dismissing the employee
  • injuring the employee in his or her employment
  • altering the position of the employee to the employee’s prejudice
  • discriminating between the employee and other employees
  • 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 employment
  • threatening to do any of the above

Of the above, the adverse action must have occurred because of a person’s or group’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Remedies or penalties for unlawful discrimination.

The Fair Work Act 2009 is in function 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 Fair Work Act 2009 permits Fair Work Inspectors to investigate allegations of unlawful discrimination in employment and to seek penalties for contraventions.

Under the Fair Work Act 2009, 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.

Bullying, harassment, and workplace conflict.

The Fair Work Ombudsman promotes best practice anti-discriminatory measures and rejects bullying, harassment and conflict in the workplace. However, bullying or harassment does not necessarily constitute unlawful discrimination under the Fair Work Act 2009 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. Visit Employsure’s guide on bullying and harassment for more information.

Employsure can advise on ways to minimise discrimination in your business. Contact Employsure today on 1300 651 415 to speak with a specialist.

Questions? Call us on 1300 651 415 to speak with a specialist

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