Relevant Legislation

Discrimination is a complex area of the law. There is a prohibition against certain forms of discrimination in the workplace under a number of federal, state, and territory statutes across Australia including:

  • Fair Work Act 2009 (Cth)
  • The Commonwealth Discrimination Acts:
  • Racial Discrimination Act 1975 (Cth)
  • Sex Discrimination Act 1984 (Cth)
  • Disability Discrimination Act 1992 (Cth)
  • Age Discrimination Act 2004 (Cth)
  • Discrimination Act 1991 (ACT)
  • Anti-Discrimination Act 1977 (NSW)

The Commonwealth statutes have significant overlap with each state and territory’s discrimination legislation. Employer’s may have to comply with both sets of laws.

 

Fair Work Act 2009 (Cth)

Who is covered by this legislation?

  • Workers for companies.
  • All workers in Victoria (other than police or an executive in the public sector), in the ACT, and in the NT (other than the police).
  • Workers in the private sector in NSW, Queensland, or SA.
  • Workers in the private sector or local government sector in Tasmania.

What does this Act  prohibit?

The Fair Work Act 2009 prohibits employers and principals from discriminating against current and prospective employees or contractors on the basis of their race, colour, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

However, if the action is not unlawful under any anti-discrimination law in force in the place where the action is taken (meaning that the action is allowed under state/territory anti-discrimination law), it is also not unlawful discrimination for the purposes of this Act..

The Commonwealth Discrimination Acts

Who is covered by this legislation?

  • The Commonwealth discrimination acts cover all workers in Australia.

What do these Acts prohibit?

The Racial Discrimination Act 1975 prohibits employers from discriminating against a current or prospective employee on the ground of their race.

The Sex Discrimination Act 1984 prohibits employers from discriminating against a current or prospective employee on the ground of their sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, or family responsibilities.

It is also unlawful for an employer to sexually harass their employee, or for an employee to sexually harass their fellow employee. In the latter case, the employer can be held vicariously responsible for the actions of its employee.

See also: sexual harassment

The Disability Discrimination Act 1992 prohibits an employer from discriminating against an employee on the ground of their disability by either treating them less favourably than they would someone without the disability in similar circumstances, or by making them comply with a requirement or condition that disadvantages the employee because of their disability. Employers must also make reasonable adjustments to allow the disabled employee to carry out the inherent requirements of their job, up to the point that those adjustments would cause the employer unjustifiable hardship.

See also: reasonable adjustments

The Age Discrimination Act 2004 prohibits an employer from discriminating against current or prospective employees on the ground of their age.

 

Discrimination Act 1991 (ACT)

Who is covered by the legislation?

  • This act generally applies to workers in the ACT.

What does the Act prohibit?

The Discrimination Act 1991 prohibits an employer from discriminating against a person on the basis of their sex, sexuality, gender identity, relationship status, status as a parent or carer, pregnancy, breastfeeding, race, religious or political conviction, disability, including aid of assistance animal, industrial activity, age, profession, trade, occupation or calling, spent conviction, and association (as a relative or otherwise) with a person who has one of the above attributes.

It also prohibits sexual harassment and vilification on the basis of race, sexuality, gender identity or HIV/AIDS status.

 

Anti-Discrimination Act 1977 (NSW)

Who is covered by this legislation?

  • This act generally applies to workers in NSW.

What does the Act prohibit?

It prohibits an employer from discrimination against a person on the basis of their race, including colour, nationality, descent and ethnic, ethno-religious or national origin, sex, including pregnancy and breastfeeding, marital or domestic status, disability, homosexuality, age, transgender status, and carer responsibilities.

It also prohibits sexual harassment and vilification on the basis of race, homosexuality, transgender status or HIV/AIDS status.

Orders for compensation can be made for breaches of discrimination laws. This can include compensation for both financial and non-financial loss.

Contact us for more information.