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Document Id workplace_discrimination_(1).pdf
Document Title Workplace Discrimination
Reference https://drive.google.com/uc?export=download&id=1hYBFt5uWLMpmmU9QtL4hvzjAyc4LZNjp
Publisher Fair Work Ombudsman
Categorization Human Resource Management Diversity, Equity, Inclusion & Belonging
Document Source 10219 characters in 0 pages. (pdf)
Tags workplace discrimination, Fair Work Act, adverse action, employee rights, sexual harassment, bullying, anti-discrimination laws, workplace protections, employee assistance, legal remedies
This document, published by the Fair Work Ombudsman, outlines unlawful workplace discrimination as defined by the Fair Work Act (FW Act). It details the attributes that protect employees and prospective employees from adverse actions taken by employers, such as race, sex, age, and disability. The document explains what constitutes adverse action, provides examples of lawful and unlawful discrimination, and discusses related issues like workplace bullying and sexual harassment. It also outlines the rights of employees, the process for reporting discrimination, and the potential remedies available through the legal system. The intended audience includes employees, employers, and individuals seeking information on workplace rights and protections.
The document from the Fair Work Ombudsman provides a comprehensive overview of unlawful workplace discrimination as defined by the Fair Work Act (FW Act). It specifies that discrimination occurs when an employer takes adverse action against an employee or prospective employee based on certain protected attributes, including race, sex, sexual orientation, age, disability, and more. Adverse actions include dismissals, changes to employment conditions, and refusal to hire based on these attributes. The document emphasizes that not all differential treatment is unlawful; for instance, performance management actions that are not based on protected attributes do not constitute discrimination. It provides examples to illustrate both unlawful and lawful actions, such as the case of Sally, who was denied a promotion due to her pregnancy, which is prohibited under the FW Act, versus Paul, whose performance issues led to a change in his duties unrelated to discrimination. Additionally, the document addresses workplace bullying and sexual harassment, defining them and explaining the rights of employees to a safe work environment free from such behaviors. It outlines the responsibilities of employers under the FW Act and the Sex Discrimination Act to prevent discrimination and harassment. For those who experience discrimination, the document advises on the steps to take, including contacting the Fair Work Infoline or lodging an application with the Fair Work Commission. It also discusses the potential remedies and penalties for unlawful discrimination, which may include compensation or reinstatement if a court finds in favor of the complainant. The document concludes by encouraging individuals to seek assistance from relevant organizations if their complaints fall outside the jurisdiction of the Fair Work Ombudsman, and it provides contact information for further support. Overall, it serves as a vital resource for understanding workplace rights and protections against discrimination in Australia.

Original content extracted from the source document.

Workplace discrimination

What is unlawful workplace discrimination?

Unlawful workplace discrimination under the general protections in the Fair Work Act (FW Act) occurs when an employer takes adverse action against an employee or prospective employee because of one or more of the following attributes:

  • race
  • colour
  • sex
  • sexual orientation
  • breastfeeding
  • gender identity
  • intersex status
  • age
  • physical or mental disability
  • marital status
  • family or carer's responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin
  • experiencing (or having experienced) family and domestic violence.

What is adverse action?

Adverse action is unlawful if it is taken for a discriminatory reason. The FW Act describes several adverse actions.

Adverse action taken by an employer includes doing, threatening, or organising any of the following:

  • dismissing an employee
  • injuring an employee in their employment
  • altering an employee's position to their detriment
  • discriminating between one employee and other employees
  • refusing to employ a prospective employee
  • discriminating against a prospective employee on the terms and conditions in the offer of employment.

Fair Work Infoline: 13 13 94

For more information on adverse action and other rights protected from certain unlawful action, please see our Protections at work fact sheet at fairwork.gov.au/factsheets

Example

Sally is employed at an advertising firm. Recently, Sally applied for a promotion for a vacant Account Manager position.

During the interview, Sally mentions to the manager that she is pregnant and plans on taking her entitlement to parental leave.

Although Sally is highly qualified for the job, her manager tells her that she did not receive the promotion because she would be taking her parental leave.

Denying Sally this position because she is pregnant is prohibited under the FW Act.

Who is covered by these protections?

Employees and prospective employees in the Fair Work system are covered by these protections. It is unlawful for an employer to discriminate against an employee. This includes full-time, part-time and casual employees, probationary employees, apprentices and trainees, and individuals employed for a set period of time or season. It is also unlawful to refuse to hire a prospective employee based on one of the attributes listed above.

What is not considered unlawful discrimination?

Treating someone differently is not necessarily unlawful discrimination. Some different treatment such as general performance management may not be an unlawful discrimination issue.

Under the FW Act, an action is only considered adverse action if it occurs due to one or more of the protected attributes, as listed above in What is unlawful workplace discrimination?. If this is not the basis of the action, it may not be considered an act of unlawful discrimination.

Example

Paul is a marketing employee who made several errors on his last project. To try and address this, Paul has been placed on a performance management plan to develop his skills.

However, Paul has continued to make errors while on the plan. As such, Paul's daily duties have been changed while he undergoes further training.

In this example, it is not unlawful to alter Paul's employment because the reason is not based on his personal attributes, for example race, sex, age or disability.

The FW Act also provides that in some circumstances, an action may not be considered discrimination. This includes where the action:

  • is permissible under Commonwealth, state or territory anti -discrimination laws
  • is based on the inherent requirements of the particular position concerned
  • is taken against a staff member of an institution run in accordance with religious beliefs, and the action is taken in good faith and to avoid injury to those religious beliefs.

What about bullying?

Everyone has the right to a workplace free from bullying. Bullying at work happens when:

  • a person or group of people repeatedly behave unreasonably towards another worker or group of workers
  • the behaviour creates a risk to health and safety.

The Fair Work Commission (the Commission) deals with applications to stop bullying at work under the FW Act. For more information visit fwc.gov.au

Bullying can also be unlawful under work health and safety laws. People experiencing bullying can seek advice and help from their local work health and safety body. You can find contact details for these organisations at fairwork.gov.au/links

Fair Work Infoline: 13 13 94

What about sexual harassment?

Everyone has the right to a workplace that is safe and free from sexual harassment.

Sexual harassment is:

  • an unwelcome sexual advance or request for sexual favours to the person being harassed
  • other unwelcome sexual conduct towards the person being harassed.

The FW Act prohibits sexual harassment connected to work, including in the workplace. This means workers, future workers and other people conducting a business or undertaking (such as self-employed people or sole traders) are protected from sexual harassment in connection to work.

The Commission can deal with disputes about workplace sexual harassment under the FW Act. For more information visit fwc.gov.au/sexual-harassment

The Fair Work Ombudsman (us) can also assist with some issues around sexual harassment at work. For more information visit

fairwork.gov.au/sexual-harassment

The Respect@Work website provides comprehensive resources to help businesses and individuals understand, prevent, and respond to workplace sexual harassment. Visit respectatwork.gov.au

Positive duty under the Sex Discrimination Act Under the Sex Discrimination Act, organisations have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

  • discrimination on the ground of sex in a work context
  • sexual harassment in connection with work
  • sex-based harassment in connection with work
  • conduct creating a workplace environment that is hostile on the ground of sex
  • related acts of victimisation.

The Australian Human Rights Commission has a range of practical information and resources to help organisations meet their positive duty obligations. Visit their website at humanrights.gov.au

What do I do if I've experienced discrimination at work?

We are committed to ensuring that employees and prospective employees are protected from unlawful workplace discrimination and any other adverse actions by an employer. Where an investigation finds that the employer has, or had, discriminatory practices that are linked to adverse actions for employees or prospective employees, we may take enforcement action.

If you believe that you and/or other employees have been unlawfully discriminated against in your employment, you can request assistance from us. You can do this by calling us on 13 13 94 or submitting an online enquiry at fairwork.gov.au/register

We investigate allegations of unlawful workplace discrimination and may initiate litigation against a national system employer for contravening the FW Act.

You may also be able to lodge an application with the Commission. If you have not been dismissed but allege that there has been a contravention of the discrimination protection provisions of the FW Act, you may make an application to the Commission to deal with the dispute.

What do I do if I've been dismissed for a discriminatory reason?

If you have been dismissed and you believe that it is because of one of the attributes listed above, for example, your race, sex, age, disability, you should make an application to the Commission in the first instance.

The timeframe for lodging an application to the Commission in relation to general protections, for either unfair dismissal or unlawful termination, is 21 days. To find out more about matters involving termination, contact the Commission at fwc.gov.au

Fair Work Infoline: 13 13 94

What are the remedies or penalties for unlawful discrimination?

Under the general protections in the FW Act, there are various remedies and penalties for adverse action on discriminatory grounds.

Where the Federal Court or Federal Circuit and Family Court of Australia determines that a person has contravened the discrimination protections under the FW Act, the court may make any order that it considers appropriate, including orders for injunctions, reinstatement and/or compensation.

A court can also impose penalties for these contraventions. You can check the current maximum penalty amounts at fairwork.gov.au/litigation

Other ways of getting help

We do not have jurisdiction to deal with all unlawful discrimination complaints. If you contact us about a complaint or enquiry that is outside our jurisdiction, we will refer you to the appropriate organisation.

For example, if we receive an enquiry from an employee being bullied or harassed by a colleague at work, we will need to refer the employee to their relevant state or territory workplace health and safety authority for help.

There are a range of anti-discrimination laws and bodies that might be able to help you depending on the enquiry you have. You can find contact details for these organisations at fairwork.gov.au/links

If you are a member of a trade union or employee association, they may also be able to help you.

Contact us

Fair Work online: fairwork.gov.au

Fair Work Infoline:

13 13 94

Need language help?

Contact the Translating and Interpreting Service (TIS) on 13 14 50

Help for people who are deaf or have hearing or speech difficulties

You can contact us through the National Relay Service (NRS).

Select your preferred access option and give our

phone number:

13 13 94

The Fair Work Ombudsman is committed to providing you with advice that you can rely on. The information contained in this fact sheet is general in nature. If you are unsure about how it applies to your situation you can call our Infoline on 13 13 94 or speak with a union, industry association or a workplace relations professional.

Last updated: April 2025

© Copyright Fair Work Ombudsman

Chunk 0 from Page 1 (What is unlawful workplace discrimination?)

Unlawful workplace discrimination under the general protections in the Fair Work Act (FW Act) occurs when an employer takes adverse action against an employee or prospective employee because of one or more of the following attributes:

  • race
  • colour
  • sex
  • sexual orientation
  • breastfeeding
  • gender identity
  • intersex status
  • age
  • physical or mental disability
  • marital status
  • family or carer's responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin
  • experiencing (or having experienced) family and domestic violence.
Chunk 1 from Page 1 (What is adverse action?)

Adverse action is unlawful if it is taken for a discriminatory reason. The FW Act describes several adverse actions. Adverse action taken by an employer includes doing, threatening, or organising any of the following:

  • dismissing an employee
  • injuring an employee in their employment
  • altering an employee's position to their detriment
  • discriminating between one employee and other employees
  • refusing to employ a prospective employee
  • discriminating against a prospective employee on the terms and conditions in the offer of employment. Fair Work Infoline: 13 13 94 For more information on adverse action and other rights protected from certain unlawful action, please see our Protections at work fact sheet at fairwork.gov.au/factsheets
Chunk 2 from Page 1 (Example)

Sally is employed at an advertising firm. Recently, Sally applied for a promotion for a vacant Account Manager position. During the interview, Sally mentions to the manager that she is pregnant and plans on taking her entitlement to parental leave. Although Sally is highly qualified for the job, her manager tells her that she did not receive the promotion because she would be taking her parental leave. Denying Sally this position because she is pregnant is prohibited under the FW Act.

Chunk 3 from Page 1 (Who is covered by these protections?)

Employees and prospective employees in the Fair Work system are covered by these protections. It is unlawful for an employer to discriminate against an employee. This includes full-time, part-time and casual employees, probationary employees, apprentices and trainees, and individuals employed for a set period of time or season. It is also unlawful to refuse to hire a prospective employee based on one of the attributes listed above.

Chunk 4 from Page 1 (What is not considered unlawful discrimination?)

Treating someone differently is not necessarily unlawful discrimination. Some different treatment such as general performance management may not be an unlawful discrimination issue. Under the FW Act, an action is only considered adverse action if it occurs due to one or more of the protected attributes, as listed above in What is unlawful workplace discrimination?. If this is not the basis of the action, it may not be considered an act of unlawful discrimination.

Chunk 5 from Page 2 (Example)

Paul is a marketing employee who made several errors on his last project. To try and address this, Paul has been placed on a performance management plan to develop his skills. However, Paul has continued to make errors while on the plan. As such, Paul's daily duties have been changed while he undergoes further training. In this example, it is not unlawful to alter Paul's employment because the reason is not based on his personal attributes, for example race, sex, age or disability. The FW Act also provides that in some circumstances, an action may not be considered discrimination. This includes where the action:

  • is permissible under Commonwealth, state or territory anti -discrimination laws
  • is based on the inherent requirements of the particular position concerned
  • is taken against a staff member of an institution run in accordance with religious beliefs, and the action is taken in good faith and to avoid injury to those religious beliefs.
Chunk 6 from Page 2 (What about bullying?)

Everyone has the right to a workplace free from bullying. Bullying at work happens when:

  • a person or group of people repeatedly behave unreasonably towards another worker or group of workers
  • the behaviour creates a risk to health and safety. The Fair Work Commission (the Commission) deals with applications to stop bullying at work under the FW Act. For more information visit fwc.gov.au Bullying can also be unlawful under work health and safety laws. People experiencing bullying can seek advice and help from their local work health and safety body. You can find contact details for these organisations at fairwork.gov.au/links Fair Work Infoline: 13 13 94
Chunk 7 from Page 2 (What about sexual harassment?)

Everyone has the right to a workplace that is safe and free from sexual harassment. Sexual harassment is:

  • an unwelcome sexual advance or request for sexual favours to the person being harassed
  • other unwelcome sexual conduct towards the person being harassed. The FW Act prohibits sexual harassment connected to work, including in the workplace. This means workers, future workers and other people conducting a business or undertaking (such as self-employed people or sole traders) are protected from sexual harassment in connection to work. The Commission can deal with disputes about workplace sexual harassment under the FW Act. For more information visit fwc.gov.au/sexual-harassment The Fair Work Ombudsman (us) can also assist with some issues around sexual harassment at work. For more information visit
Chunk 8 from Page 2 (fairwork.gov.au/sexual-harassment)

The Respect@Work website provides comprehensive resources to help businesses and individuals understand, prevent, and respond to workplace sexual harassment. Visit respectatwork.gov.au Positive duty under the Sex Discrimination Act Under the Sex Discrimination Act, organisations have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

  • discrimination on the ground of sex in a work context
  • sexual harassment in connection with work
  • sex-based harassment in connection with work
  • conduct creating a workplace environment that is hostile on the ground of sex
  • related acts of victimisation. The Australian Human Rights Commission has a range of practical information and resources to help organisations meet their positive duty obligations. Visit their website at humanrights.gov.au
Chunk 9 from Page 3 (What do I do if I've experienced discrimination at work?)

We are committed to ensuring that employees and prospective employees are protected from unlawful workplace discrimination and any other adverse actions by an employer. Where an investigation finds that the employer has, or had, discriminatory practices that are linked to adverse actions for employees or prospective employees, we may take enforcement action. If you believe that you and/or other employees have been unlawfully discriminated against in your employment, you can request assistance from us. You can do this by calling us on 13 13 94 or submitting an online enquiry at fairwork.gov.au/register We investigate allegations of unlawful workplace discrimination and may initiate litigation against a national system employer for contravening the FW Act. You may also be able to lodge an application with the Commission. If you have not been dismissed but allege that there has been a contravention of the discrimination protection provisions of the FW Act, you may make an application to the Commission to deal with the dispute.

Chunk 10 from Page 3 (What do I do if I've been dismissed for a discriminatory reason?)

If you have been dismissed and you believe that it is because of one of the attributes listed above, for example, your race, sex, age, disability, you should make an application to the Commission in the first instance. The timeframe for lodging an application to the Commission in relation to general protections, for either unfair dismissal or unlawful termination, is 21 days. To find out more about matters involving termination, contact the Commission at fwc.gov.au Fair Work Infoline: 13 13 94

Chunk 11 from Page 3 (What are the remedies or penalties for unlawful discrimination?)

Under the general protections in the FW Act, there are various remedies and penalties for adverse action on discriminatory grounds. Where the Federal Court or Federal Circuit and Family Court of Australia determines that a person has contravened the discrimination protections under the FW Act, the court may make any order that it considers appropriate, including orders for injunctions, reinstatement and/or compensation. A court can also impose penalties for these contraventions. You can check the current maximum penalty amounts at fairwork.gov.au/litigation

Chunk 12 from Page 3 (Other ways of getting help)

We do not have jurisdiction to deal with all unlawful discrimination complaints. If you contact us about a complaint or enquiry that is outside our jurisdiction, we will refer you to the appropriate organisation. For example, if we receive an enquiry from an employee being bullied or harassed by a colleague at work, we will need to refer the employee to their relevant state or territory workplace health and safety authority for help. There are a range of anti-discrimination laws and bodies that might be able to help you depending on the enquiry you have. You can find contact details for these organisations at fairwork.gov.au/links If you are a member of a trade union or employee association, they may also be able to help you.

Chunk 13 from Page 4 (Contact us)

Fair Work online: fairwork.gov.au Fair Work Infoline: 13 13 94 Need language help? Contact the Translating and Interpreting Service (TIS) on 13 14 50 Help for people who are deaf or have hearing or speech difficulties You can contact us through the National Relay Service (NRS). Select your preferred access option and give our phone number: 13 13 94 The Fair Work Ombudsman is committed to providing you with advice that you can rely on. The information contained in this fact sheet is general in nature. If you are unsure about how it applies to your situation you can call our Infoline on 13 13 94 or speak with a union, industry association or a workplace relations professional. Last updated: April 2025 © Copyright Fair Work Ombudsman

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