Avoiding discrimination in employment
Discrimination can be direct or indirect. Direct discrimination is treating one person less favourably than another because of particular attributes, such as race, colour, sex, sexual preference, age, disability, medical record, impairment, marital status, pregnancy, potential pregnancy, family responsibilities, criminal record, trade union activity, political opinion, religion, national extraction or social origin. An example of direct discrimination would be deciding not to employ a person because that person is from a particular ethnic background.
Indirect discrimination is treating everyone the same but in a way that ends up being unfair to a specific group of people. An example of this is where the design of a workplace prevents a person with a disability from accessing the equipment needed to do the job.
It is unlawful to discriminate even when it was not your intention to discriminate. For example, if you set conditions that in practice will favour one sex over another, the decision may be unlawful even though you did not intend this to be the outcome.
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Anti-discrimination provisions are contained in a number of federal Acts, including the:
- Racial Discrimination Act 1975
- Sex Discrimination Act 1984
- Disability Discrimination Act 1992
- Human Rights and Equal Opportunity Commission Act 1986.
The Human Rights and Equal Opportunity Commission administers these Acts.
The importance of preventing discrimination is also stressed in the principal objects of the Workplace Relations Act 1996 (Cth), which refers to respecting and valuing the diversity of the workforce by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin.
All states and territories have some form of anti-discrimination legislation, which generally covers the same areas as the federal legislation. In some states there may be other types of discrimination added to those listed above. For example, in Western Australia it is unlawful to discriminate against someone because of a spent criminal conviction. Federal legislation allows state legislation to remain valid and the state legislation operates in a way that does not affect the operation of the federal legislation.
Employees who suffer discrimination may apply to the federal Human Rights and Equal Opportunity Commission or a State tribunal such as the NSW Anti-Discrimination Tribunal. After one tribunal deals with an employee’s complaint, another tribunal cannot deal with it a second time.
For more information on discrimination contact the Human Rights and Equal Opportunity Commission and/or the relevant anti-discrimination agency in your state or territory. The Human Rights and Equal Opportunity Commission also hosts a site that aims to assist employers in understanding their rights and responsibilities under human rights and anti-discrimination law in Australia. See the HREOC Information for employers.
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An employer cannot discriminate against employees and job applicants:
- in the arrangements made for the purpose of determining who should be offered employment; or;
- in determining who should be offered employment; or
- in the terms or conditions on which employment is offered;
- when providing access to opportunities for promotion, transfer, training or other benefits associated with employment;
- when dismissing an employee, and
- when subjecting an employee to some other detriment.
Discrimination against employees on the ground of family responsibilities is limited to dismissing an employee.
Similar anti-discrimination provisions apply to contract workers in relation to:
- the terms and conditions on which the contract worker is allowed to work;
- deciding whether to allow the person to work, or continue work;
- access to opportunities or benefits associated with the contract, and
- subjecting the person to some other detriment.
The Australian Industrial Relations Commission must refuse to certify a proposed Certified Agreement if it thinks the agreement discriminates against an employee on the grounds of race, colour, sex, sexual preference, age, disability, marital status, pregnancy, potential pregnancy, family responsibilities, religion, political opinion, national extraction or social origin.
Similarly, Australian Workplace Agreements must include anti-discrimination provisions on the same grounds. If they do not include these provisions, they will be treated as if the provisions were included.
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Under the Workplace Relations Act 1996 (Cth), the AIRC has the power to see that men and women receive equal remuneration for work of equal value.
This applies to all employees in Australia unless an adequate alternative remedy is already provided by a federal, State or Territory law. If an application is lodged with the Commission and it decides that discrimination has occurred, it can make orders to ensure that equal rates of remuneration for work of equal value will apply. Remuneration includes basic wages or salary, over-award payments and other work-related benefits in cash or kind such as private use of a company car.
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