For the most part, the practice and application of law can be rather complex, and although we exist in world where there are shades of grey, the law however, in some respects, deals in absolutes. Because the law requires specificity under certain circumstances, a matter that demands a more nuanced approach, can be difficult for the law to deal with. One area of particular difficulty – which conveniently enough is the focus of the article – is the issue of workplace discrimination. Australia has many pieces of legislation that is designed to eliminate all forms of discrimination, and in every aspect of the employment process – beginning from the hiring of an employee, to setting out the terms and conditions of employment, and any issues involving the promotion or termination of an employee, are all covered by anti-discrimination legislation.
What are the applicable anti-discrimination Acts?
As it stands, there are at least 14 different Federal, State and Territory anti-discrimination and equal opportunity laws that are in operation throughout the country. However, the Acts which are most substantive at the Federal level are the Racial Discrimination Act, Disability Discrimination Act, Sex Discrimination Act, Age Discrimination Act and the Equal Opportunity for Women in the Workplace Act. Additionally, the Australian Human Rights Act can also be applied to the law of employment under certain circumstances.
How is discrimination regulated in employment?
Because the definition of discrimination can encompass many different behaviours, we can instead look towards the objects of the Age Discrimination Act as an example, in determining the general legislative approach of anti-discrimination laws in Australia, which is “…to eliminate, as far as possible, discrimination against persons…in the areas of work…” Similar wording can also be found in other Acts that deal with other forms of discrimination as well.
In order to gain a further understanding of how far reaching the laws can be, when applied to the restraining of discriminatory behaviours in the workplace, we can look towards s 351 of the Fair Work Act (FWA), which states that an employer must not take adverse action against an employee, or a prospective employee on the grounds of the person’s:
• sexual preference
• physical or mental disability
• family or carer’s responsibility
• political opinion
• national extraction
• social origin.
In addition to the FWA, the Fair Work Ombudsman also has the investigative and prosecutorial powers to initiate civil penalties against an employer who is found to be in breach of the anti-discrimination provisions in the Act.
How are anti-discrimination laws applied in Australia?
Despite the large number of different anti-discrimination Acts in Australia, there is a general approach in how the Acts operate in order to prevent discrimination in the workplace, and the resolving of any claims of discrimination bought by an employee, which usually involves conciliation with the appropriate agency body.
Additionally, it’s important to also be aware, that the anti-discrimination laws apply to all employees, irrespective of where a person works, what position they hold, or their employment status, because every worker in Australia is afforded protection from discriminatory behaviour.
One of the more interesting aspects of the anti-discrimination legislation, is that an employer can be found liable for discriminatory behaviour committed by an employee, if the behaviour was done in connection with the employment of the employee. In order for an employer to prove otherwise, the employer must show that it took all reasonable steps to prevent the employee from committing the discriminatory conduct.
Anti-discrimination laws are very complex and this article is only a basic introduction to the various legislative regimes in operation. If you are experiencing any difficulties in regards to workplace discrimination, please contact a lawyer who can advise, and assist you with any employment matter that may be affecting you.