Discrimination involves less favourable treatment of one person, compared to another person.

Not all discrimination is unlawful.  In order for it to be unlawful:

  • the discrimination must occur for a prohibited reason, and
  • the discrimination must occur in one of a specified number of areas.

In a legal context, harassment is generally limited to sexual harassment.  Sexual harassment means unwanted conduct of a sexual nature.  While some types of sexual harassment are unlawful in any context (for example, sexual assault is a form of sexual harassment) anti-discrimination laws each contain specific provisions prohibiting sexual harassment in the workplace. Workplace bullying is a separate ground of complaint from harassment and discrimination.

Discrimination and sexual harassment in employment are prohibited:

  • under Commonwealth anti-discrimination law;
  • under the Commonwealth Fair Work Act; and
  • under state anti-discrimination law.

However the processes, prohibited reasons and remedies available differ between each of the regimes.

Anti-discrimination laws generally recognize both “direct discrimination” and “indirect discrimination“.  Direct discrimination involves treating a person less favourably because of the prohibited reason while indirect discrimination involves the imposition of a rule or requirement that has different impact on people because of a protected quality.  For example, a requirement that employees be more than 6ft tall would indirectly discriminate against women, as men are disproportionately more likely to be more than 6ft tall.

Discrimination under New South Wales Law

The primary anti-discrimination law in New South Wales is the Anti-Discrimination Act.  The Anti-Discrimination Act prohibits a very broad range of discrimination in employment, as well as in the provision of services and government action.  The specific protections provided by the Anti-Discrimination Act include protections against:

  • discrimination on the basis of race and racial vilification
  • discrimination on the basis of sex and sexual harassment
  • discrimination on transgender grounds and transgender vilification
  • discrimination on the grounds of disability
  • discrimination on the grounds of age and prohibition of compulsory retirement on the ground of age
  • discrimination on the grounds of homosexuality
  • discrimination on the grounds of a person’s responsibility as a carer
  • HIV/AIDS vilification

Claims must be commenced within 12 months of the date of the discrimination or other act complained of.

Who Can Bring a Claim?

All employees, along with potential employees and subcontractors are entitled to bring a claim under the Anti-Discrimination Act.   There is no threshold for a minimum period of employment or as to earnings.  However, there may be some instances where claims cannot be brought under the state Act and must be brought under Commonwealth law.

The Process

The process for a claim under the Anti-Discrimination Act is generally:

  1. A complaint should be made to the Anti-Discrimination Board within 12 months of the action complained.  The Board may elect not to accept a complaint made after that period.
  2. The Anti-Discrimination Board will investigate the complaint and will arrange a mediation.  The mediation, which seeks a resolution of the complaint, generally occurs within three to six months of the complaint.
  3. In the event the mediation does not resolve the complaint, the complaint may be referred to the New South Wales Civil and Administrative Tribunal (NCAT).
  4. NCAT will list the matter for directions.  Orders will generally be made for the preparation of evidence, and often mediation.
  5. The matter will be listed for hearing within about 6 months of the referral from NCAT.
  6. The hearing will take place before three members of NCAT.   Witnesses will be cross examined and the NCAT members  will make a decision as to whether discrimination  has taken place, along with  appropriate orders for compensation.  The compensation that may be ordered is limited to $100,000.

Generally, each party pays their own costs although there is some capacity for orders to be made requiring one party to pay some or all of the costs of the other side.

Discrimination under Commonwealth anti-discrimination laws

There are series of Acts that prohibit discrimination under Commonwealth law.  These Acts are organised under the Australian Human Rights Commission Act.  The specific Acts include:

  • The Race Discrimination Act which prohibits racial discrimination and racial vilification;
  • The Sex Discrimination Act which prohibits sex discrimination and sexual harassment;
  • The Age Discrimination Act which prohibits age discrimination;
  • The Disability Discrimination Act which prohibits disability discrimination.

The range of protections under Commonwealth law is more limited than under New South Wales law.

The protections are also reproduced, at least in respect of direct discrimination, in the adverse action provisions of the Fair Work Act.

Who Can Bring a Claim?

Most employees, along with potential employees and subcontractors are entitled to bring a claim under the Australian Human Rights Commission Act.  Some state government employees are not entitled to bring a claim under the Commonwealth laws.  There is no threshold for a minimum period of employment or as to earnings.

The Process

The process for a claim under the Australian Human Rights Commission Act is generally:

  1. A complaint should be made to the Australian Human Rights Commission within 12 months of the action complained.  The Commission may elect not to accept a complaint made after that period.
  2. The Commission will investigate the complaint and will arrange a conference.  The conference, which seeks a resolution of the complaint, generally occurs within three to six months of the complaint.
  3. In the event the conference does not resolve the complaint, the complaint will be ‘terminated’.  The termination entitles the complaint to commence court proceedings.
  4. If the complaint elects to do this, proceedings can then be commenced in the Federal Circuit Court or Federal Court.  The proceedings must be commenced within 60 days of the date of the termination of the complaint by the Australian Human Rights Commission.
  5. The Court will list the matter for directions.  Orders will generally be made for the preparation of evidence, and generally, further mediation.
  6. The matter will be listed for hearing within about 6 months of the commencement of proceedings.
  7. The hearing will take place before a judge in the Federal Court or Federal Circuit Court.   Witnesses will be cross examined and the judge will make a decision as to whether discrimination  has taken place, along with  appropriate orders for compensation.  The compensation is uncapped.

Generally, the losing party pays 50-70% of the successful parties costs.

Discrimination under the Fair Work Act

Claims alleging discrimination are brought under the general protections provisions of the Fair Work Act, and are generally known as “adverse action” claims.

Under the Fair Work Act, the prohibited reasons are extended from personal attributes (race, age, sex, etc.) to also include workplace rights and industrial rights.

Adverse action claims involve allegations that a person has been treated unfairly (including by having their employment terminated) as a result of:

  • a prohibited reason such as sex, race, age; or
  • a person having exercised or proposed to exercise a workplace right;
  • a person having exercised or proposed to exercise an industrial right, such as joined or participated in union activities.

Adverse action claims are more significant and costlier than unfair dismissal claims. Unlike unfair dismissal there is no cap on the amount of compensation that can be recovered and compensation can be recovered, if appropriate, for pain and suffering.

Adverse action claims must be commenced within 21 days of the termination of employment or 6 years if there is no allegation of termination.

Who Can Bring a Claim?

All employees (other than state government employees), along with potential employees and subcontractors are entitled to bring an adverse action claim. There is no threshold for a minimum period of employment or as to earnings.

The Process

The process for an adverse action claim differs depending on whether it involves the termination of employment.

For claims involving termination:

  1. Within 21 days of the termination, proceedings must be commenced in the Fair Work Commission.
  2. Within about a six weeks of filing the matter will be subject to a conciliation conference which will attempt find a negotiated resolution
  3. In the event there is no negotiated resolution, the Commission will issue a certificate. Following the certificate, the applicant can commence proceedings in the Federal Court or Federal Circuit Court. Alternatively, the parties can agree to have the matter dealt with by the Fair Work Commission.
  4. If the parties elect to have the matter be dealt with by the Fair Work Commission, the matter will be timetabled for hearing in a manner similar to that used for unfair dismissals. This timetable will allow for the preparation of statements by both the employee and employer, an outline of submission and potentially the production of documents. A hearing will occur before a member of the Fair Work Commission. Hearings generally take place about 3 to 6 months after the termination.
  5. If the applicant elects to commence proceedings in the Federal Circuit Court or Federal Court, the matter will be listed for directions. The directions will cover the preparation of pleadings, evidence, usually in affidavit form, and other steps.  Commonly, Orders for compulsory mediation will be made.  The matter will then be listed for trial.
  6. The trial in the matter will take place about twelve months after the termination.  Witnesses will be cross examined and the judge will make a decision as to whether adverse action has taken place and the appropriate orders for compensation, penalties etc, that may arise.

Sexual harassment

Sexual harassment is unwelcome conduct of a sexual nature.  It does not need to involve repeated acts, although repeated acts often assist in demonstrating that conduct was unwelcome.

The law in relation to sexual harassment is very similar under state and Commonwealth law.  The decisions as to which regime to commence a complaint under is made by reference to:

  • whether there is any other action being contemplated (if there is, a claim under Commonwealth law will generally be preferred as it can be brought in the Federal Court or Federal Circuit Court)
  • whether the employee is a state public sector employee.  Such employees may not be entitled to bring claims under the Commonwealth law.

The prohibition against sexual harassment is not limited by gender or sex.  Both men and women can be sexually harassed, by both men and women.  However sexual harassment of women by men remains far and away the most common.

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