The law prohibits unlawful discrimination against employees and agents.
A number of specific laws, many with different features, processes and remedies, operate. These laws include:
- Commonwealth anti-discrimination laws;
- the Commonwealth Fair Work Act (primarily through the adverse action provisions); and
- under state anti-discrimination laws, such as the Anti Discrimination Act in New South Wales, or the Equal Opportunity Act in Victoria.
Discrimination is only unlawful if it is done for a prohibited reason. Common classes of prohibited reasons are sex, race, age and disability. Some anti-discrimination laws, for example, the NSW Anti-Discrimination Act
contain a wider span of what is prohibited. It is, however, important to recognise that discrimination is only unlawful if it is for a prohibited reason. Discriminating against an employee for an non-prohibited reason (such as for example, simple because of a personality conflict) may involve bad employment practices, and may on occasion be unlawful for other reasons, but will not usually amount to unlawful discrimination.
Many anti-discrimination laws 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 a 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. Other states have similar protections, although they do not contain precisely the same protections.
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.
A claim under the Anti-Discrimination Act
generally involves the following steps:
- A complaint is made to the Anti-Discrimination Board within 12 months of the action complained. The Board may elect not to accept the complaint if made after that period.
- 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.
- 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).
- The NCAT will list the matter for directions. Orders will generally be made for the preparation of evidence and, often, mediation.
- The matter will be listed for hearing within about 6 months of the referral from the NCAT.
- The hearing will take place before three members of the 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.
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 for a claim under the Australian Human Rights Commission Act
- A complaint should be made to the Australian Human Rights Commission within 6 months of the action complained. The Commission may elect not to accept a complaint made after that period.
- 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.
- In the event the conference does not resolve the complaint, the complaint will be ‘terminated’. The termination entitles the complaint to commence court proceedings.
- 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.
- The Court will list the matter for directions. Orders will be made for the preparation of evidence, and generally, further mediation.
- The matter will be listed for hearing within about 6 months of the commencement of proceedings.
- 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 party’s costs.