1. Brief Description of Anti-Discrimination Laws
Fair Work Act: General Protections
The General Protections provisions under the Fair Work Act regulate the conduct of employers and employees and a range of other persons in terms, which are broadly expressed, but only where the conduct is connected to an Australian constitutional head of power. These provisions deal with adverse action, coercion, undue influence and pressure, membership action and misrepresentation.
Fair Work Act: The Anti-Bullying Regime
The FWC’s new anti-bullying regime came into effect on 1 January 2014. Under this new regime, any “worker” at a constitutionally covered business who reasonably believes that they have been bullied at work may apply to the FWC to stop the bullying.
Discrimination is broadly defined as the treatment of an individual or group more favourably or less favourably than another individual or group. It involves a comparison between the treatment of one individual or group with the other individual or group. Anti-discrimination legislation makes it unlawful to discriminate on certain grounds, including:
- race, colour, nationality, descent and ethnic, ethno-religious and national origin;
- sex (which extends to pregnancy);
- marital status;
- transgender status;
- carers responsibilities; and
The Commonwealth, State and Territory legislation dealing with harassment are all similarly expressed.
Equal opportunity legislation prohibits, in general, victimisation of complainants for the reason that they have, among other prohibited grounds:
- brought a complaint or intend to bring a complaint; or
- made allegations that the perpetrator has engaged in unlawful conduct of a kind prohibited by the legislation.
2. Extent of Protection
Behaviour prohibited by equal opportunity laws comprise four broad concepts:
- vilification; and
3. Protections Against Harassment
The manners in which equal opportunity complaints are dealt with are roughly similar within the Federal and State systems. Essentially, there are three steps involved:
- investigation of complaint;
- conciliation; and
4. Employer’s Obligation to Provide Reasonable Accommodations
Under equal opportunity legislation there is an obligation on employers to provide reasonable adjustments (or reasonable accommodation) for employees with disability. At present, the obligation to provide reasonable adjustments does not extend to other protected attributes such as age, race or sex. Under the Disability Discrimination Act 1992 (Cth), an adjustment is taken to be reasonable unless the employer establishes that it would impose “unjustifiable hardship”.
Courts and tribunals have the discretion to award a range of different remedies if they are satisfied that an employer has contravened the equal opportunity legislation. The most common remedies are a declaration to the effect that unlawful discrimination has occurred and an award of damages to compensate the aggrieved person for the loss they have suffered as a result of the unlawful discrimination. Courts also have the power to grant injunctive relief (i.e. an order compelling or prohibiting certain conduct), order an apology, order that an employee be reinstated to their former position, order a retraction and vary the terms of an employment contract. It is unsettled whether the courts have the power to award exemplary, punitive or other damages that go beyond mere compensation. The balance of the present state of authority suggests that exemplary or punitive damages are not available.