Know Your Rights : Discrimination







Discrimination in the workplace occurs when an individual is treated less favourably based on race, colour, sex, religion, political opinion, national extraction, social origin, carer responsibilities, age, medical record, criminal record, marital or relationship status, impairment, mental, intellectual or psychiatric disability, physical disability, nationality, sexual orientation, and trade union activity.

Discrimination also covers the imputation of one of the above grounds.

Relevant legislation
There are both federal & state anti-discrimination laws that prohibit discrimination in the workplace.

NSW legislation:

  • Anti-Discrimination Act 1977 (NSW)

Federal legislation:

  • Age Discrimination Act 2004 (Cth)
  • Australian Human Rights Commission Act 1986 (Cth)
  • Disability Discrimination Act 1992 (Cth)
  • Workplace Gender Equality Act 2012 (Cth)
  • Racial Discrimination Act 1975 (Cth) 
  • Sex Discrimination Act 1984 (Cth)

There are two types of discrimination that are prohibited by legislation, direct and indirect.

Direct discrimination
This occurs where a person is treated less favourably based on a prohibited ground of discrimination.

Indirect discrimination
This occurs where a condition, policy or requirement is imposed that a person with a specific attribute cannot comply with, but with which a substantially higher proportion of people without the attribute can comply.

Exceptions to discrimination
There are exceptions where it is not unlawful for an employer to discriminate against a person. The main exceptions include:

  • where the person’s disability prevents them from performing the inherent requirements of the job
  • where a person with a disability requires reasonable adjustment (special services or facilities) to do their work and the provision of those special services or facilities would cause unjustifiable hardship to the employer
  • where there is genuine occupational requirement for a job that a person be of a certain sex or race
  • where discriminatory acts are done in direct compliance with legislation, and
  • where otherwise discriminatory acts are reasonably necessary to promote health and safety.

You can choose to proceed under either NSW or federal legislation if there is a valid claim. There are positive and negatives for each jurisdiction. Consequently it is important to seek advice if you have an anti-discrimination claim.

If you feel you have been discriminated against, please do not hesitate to contact the ASMOF office.

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