Australian workplace legislation is comprehensive in regards to the protections that it affords workers when it relates to discrimination in the workplace. Anti-discrimination laws at state and federal levels are vigorously protected in Australia with many options available for workers who have suffered discrimination at work.
Anti-discrimination legislation in the States
Queensland (Anti-Discrimination Act), New South Wales (Industrial Relations Act and Anti-Discrimination Act) and Victoria (Equal Opportunity Act) all defend Australian workers from being prejudiced due to a particular characteristic. Broadly speaking, laws protecting workplace discrimination covers the following areas:
• marital status
• sexual orientation
• political beliefs
• gender identity
Discrimination can also be subtle and indirect, such as requiring a particular worker to meet unrealistic demands or requirements that aren’t requested for anyone else. It should be noted that it is not enough to believe that an individual has been discriminated against, there must be actual evidence that the discriminatory behaviour by the employer is real.
Sexual harassment in the workplace
Sexual harassment covers unwelcome sexual advances, requesting of sexual favours, or any conduct that has sexual connotations that may offend: such as making dirty jokes, comments, or posting images of a sexual nature around the workplace.
In Victoria, any employers who fail to protect their employees from sexual harassment may be vicariously liable under s 102 of the Equal Opportunity Act.
Racial and religious vilification in the workplace
Like sexual harassment, discrimination based on a person’s race or religion is outlawed in Queensland (s 131A), New South Wales (20C Anti-Discrimination Act) and Victoria.
The anti-discrimination provisions in Victoria are interesting in that there are seven pieces of legislation that can cover workplace discrimination. In regards to discrimination relating to race or religion, the Equal Opportunity Act and the Racial and Religious Tolerance Act can be applied, dependent on the circumstance.
The main legislative instrument for complaint is still the Equal Opportunity Act, interestingly, under the Racial and Religious Tolerance Act, a body with an interest in the subject matter can lodge a representative complaint under s 19 of the Act. A representative complaint can be made on behalf of an individual or individuals who are unable to lodge a complaint due to impairment, the person authorises the person or body to complain on their behalf or the person is a child.
Lodging a complaint of workplace discrimination
Most places of employment will have internal processes that deal with discrimination. If an individual is unsatisfied with the way their company has handled their grievance, a complaint to the various state Commissions that handle workplace discrimination can be made. However, complaints generally have to be lodged within 12 months of the discriminatory behaviour.
Picking the right body to make a complaint
There are overlaps regarding anti-discrimination and industrial relations tribunals in the state and federal levels. Employees making a complaint of discrimination must choose carefully in which body they want their complaint to be heard based on the facts of the case and the remedies sought. Transfer of complaints from a state to a federal tribunal, or vice versa, can be difficult once formal proceedings have started, so it is important that legal advice is sought for any issue regarding workplace discrimination.