Facts About Discrimination in the Workplace #EqualOpportunity

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Discrimination in the workplace is unlawful in Australia and can carry significant penalties. Discrimination can occur in one of two distinct ways, either direct discrimination or indirect discrimination.

Direct discrimination occurs when one person or group of people is treated less favourably at work because of their protected personal characteristics (known as protected attributes). Indirect discrimination occurs when an unreasonable requirement, condition or practice (e.g. a workplace policy) disadvantages people with a protected attribute. Indirect discrimination may involve a rule which is applied universally to all employees, but is likely to significantly disadvantage one particular group. For example, if a business had a ‘no part-time’ policy, this may disproportionately affect women.

The Fair Work Act

The Fair Work Act 2009 (Cth), State and Territory discrimination laws, and specific federal discrimination laws all protect employees from being the victims of discrimination at work.


The Fair Work Act says it’s illegal to treat employees badly because of things like their race or disability:

  • race
  • colour
  • sex
  • sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction or social origin

The Fair Work Act’s accessorial liability provisions hold managers and HR specialists responsible if they participate in any “adverse action” against an employee. They may also be held accountable in any action brought against the business. “Adverse action” is a broad phrase that can refer to any action that adversely affects an employee. It is not limited to dismissal, and can include taking disciplinary action, changing their position to their detriment, demotion or changing work locations to name a few. Where the reason for the decision was discriminatory, such action is unlawful and would amount to a breach of the General Protections provisions of the Act.

If an employee feels they have been the target of discrimination or other unfavorable treatment at work, they have a number of options at their disposal. These actions may include bringing general protections claims before the FWC, or the Federal Court, or filing a claim with the pertinent state or territory anti-discrimination commission. These obviously pose significant risks to employers, both financially and reputationally.

Business Decisions

To reduce the risk of discrimination or “adverse action” claims, business decisions must align with job requirements. Employers use policies to ensure lawful, thoughtful decisions. An anti-discrimination policy signals a zero-tolerance culture and can be standalone or part of a broader policy.

It may be common sense to most, however it is important to be mindful of how general protections and anti-discrimination provisions may impact your decision making during a recruitment process.

This is important right throughout the recruitment process. This includes consideration of the job ad, the position description. Even in shortlisting, interviewing, decision-making process and the negotiation and contract offer.

Do you need help with discrimination issues in your company?

We’re ready to help you.

info@clydeindustrial.com.au

1800 954 696