The potential for discrimination claims by employees against
their employers is certainly not new; employees have for many years
been able to bring such claims against their employers using
federal and state anti-discrimination legislation, and unlawful
termination protections. However, since 1 July 2009 employees have
also been able to commence proceedings against their employers
using the new "adverse action" provisions under the
Fair Work Act 2009 (Cth). Those provisions are
considerably broader than other discrimination provisions, and
being teamed with a reverse onus of proof and uncapped potential
damages, it would seem that in many respects this type of claim
would have greater appeal for employees than traditional avenues
for seeking legal redress. Employees who believe they have suffered
discrimination in the workplace now have a range of claims
available to them, so for employers this means there is potential
for legal claims on multiple fronts.
Federal, state and territory legislation across Australia
prohibits discrimination in many areas, including in the workplace.
Consideration of that legislation reveals significant overlaps,
including between federal and state/territory jurisdictions, but
generally prohibits discrimination on the basis of disability, age,
race, sex, marital status, pregnancy, family/carers'
responsibilities, and sexual orientation.
For an employee to establish that they have been discriminated
against in the workplace, they need to prove that they have
suffered direct or indirect discrimination in the course of their
Direct discrimination occurs where a person who has a particular
characteristic or belongs to a particular group of people is
treated less favourably than someone who does not have that
characteristic or does not belong to that group. For example, if a
construction company promoted a male employee instead of a female
employee on the basis that the company's clients would prefer
to deal with a man, that action would constitute direct
discrimination on the basis of gender.
Indirect discrimination occurs where a requirement, condition or
practice is imposed and one who has a particular characteristic or
belongs to a particular group cannot or could not comply with the
requirement or condition, which results in that person being
treated less favourably. For example, if a bank introduced a policy
whereby no one was allowed to work part-time, that may constitute
indirect discrimination of employees with family/carers'
The onus of proving that there has been direct or indirect
discrimination rests with the person making the complaint. This can
of course prove very difficult, as employers generally do not
voluntarily admit they have engaged in discriminatory conduct and
there may be no witnesses to corroborate the complaints of
Discrimination under the Fair Work Act
Under the Fair Work Act employers are prohibited from
taking "adverse action" against a person who is an
employee, or a prospective employee of the employer, because of the
person's race, colour, sex, sexual preference, age, physical or
mental disability, marital status, family or carer's
responsibilities, pregnancy, religion, political opinion, national
extraction or social origin. N.B. exceptions do
Adverse action is taken against an employee if the employer:
dismisses the employee; injures the employee in his or her
employment; alters the position of the employee to their prejudice;
or discriminates between the employee and other employees of the
employer. On a similar note, adverse action is taken by a
prospective employer against a prospective employee if the
employer: refuses to employ the employee; or discriminates against
the employee in the terms or conditions employment is offered to
the prospective employee.
Significantly, there is a reverse onus of proof for such claims.
This means that where an employee alleges that they have been the
subject of prohibited adverse action by their employer, it is
presumed that the action was taken for that reason or with that
intent unless the employer proves otherwise.
At this stage there do not appear to be any judgments in which
claims using the new adverse action provisions have been
successful. The use of this legal avenue in the future for
discrimination claims may well depend on how the Courts interpret
this legislation as well as the orders that are ultimately made in
successful applications. Accordingly, employers should continue to
be mindful of their legal obligations to ensure that they do not
discriminate against their employees, or prospective employees, and
thereby expose themselves to legal claims.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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