Everyone has the right to be protected from bullying, harassment and discrimination at work. There is a range of legislation that provides these protections. This webpage deals with the Fair Work Act 2009 (FW Act).

Under the FW Act it is unlawful for an employer to take adverse action against a person who is an employee or prospective employee because the person has an attribute that is protected under the FW Act.

Discrimination in the workplace

Under the FW Act, discrimination is an employer taking an adverse action against someone in the workplace or against a prospective employee because of personal attributes protected by the FW Act. For example, an employer firing a female employee because she is pregnant is adverse action and is discrimination.

Protected attributes include:

  • race
  • colour
  • sex
  • sexual orientation
  • age
  • physical or mental disability
  • marital status
  • family or carer's responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin.

However, adverse action by an employer is not considered discrimination when it is any of the following:

  • not unlawful under a state or territory anti-discrimination law (as defined in the FW Act) in force in the place where the action is taken
  • taken because of the inherent requirements of the particular position
  • taken by an institution that is run in accordance with beliefs of a religion or creed against staff members of the institution if certain requirements are met.

There may be additional attributes that are protected under anti-discrimination laws made by the state or territory in which your workplace is located.

What is adverse action?

Adverse action is defined in the FW Act. For conduct to be considered unlawful discrimination, the action must fall within the legal definition of 'adverse action' and must be taken because the employee or prospective employee has one of the protected attributes listed above.

Adverse action by an employer includes things like:

  • firing someone
  • not giving someone their legal entitlements like pay or annual leave loading
  • changing someone's job to their disadvantage, for example by taking away overtime or putting them onto shift work
  • treating someone differently to others, for example by always making one person do the unpleasant jobs, instead of sharing the tasks among all the people doing the same job
  • not hiring someone
  • offering a potential employee different (and unfair) terms and conditions for the job compared to other employees, like offering someone less money than other people doing the same job.

It is also unlawful to take adverse action because a person has made or proposes to make a complaint about discrimination.

Sexual harassment in the workplace

Under the FW Act, sexual harassment is:

  • an unwelcome sexual advance
  • an unwelcome request for sexual favours
  • other unwelcome conduct of a sexual nature in relation to another person. This includes making written or verbal statements of a sexual nature to, or in the presence of, another person.

To be sexual harassment, it has to be reasonable to expect there is a possibility the person being harassed would be offended, humiliated or intimidated by the behaviour. This means whether behaviour is sexual harassment depends on how a reasonable person would interpret the behaviour in that situation. Behaviour that is sexual harassment in one situation may not be in a different situation. The relevant circumstances need to be taken into account.

A person could also be sexually harassed by being exposed to or witnessing this kind of behaviour. For example, overhearing a conversation or seeing a sexually explicit poster in the workplace.

On 11 September 2021, the FW Act was updated with new provisions to address sexual harassment at work. The changes aim to make sure workers are protected and empowered to address sexual harassment at work.

To read more about these changes visit our Sexual harassment webpage.

Bullying in the workplace

Under the FW Act, a worker is bullied at work if:

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

Unreasonable behaviour includes victimising, humiliating, intimidating or threatening behaviour. Whether a behaviour is unreasonable can depend on whether a reasonable person might see the behaviour as unreasonable in the circumstances. Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.

Where to go for help

If you think you've been subjected to unlawful discrimination as a building employee, we may be able to help.

To find out what we can do, please contact us on 1800 003 338 or via email to enquiry@abcc.gov.au.

There are also additional federal and state and territory bodies that can help with discrimination, including non-work related discrimination.

For more information, please contact: