Under the Fair Work Act 2009 (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.

What is discrimination?

Discrimination is taking an adverse action against someone in the workplace or against a prospective employee because of a personal attributes protected by the Fair Work Act.  Protected attributes include:

  • race
  • colour
  • sex
  • sexual preference
  • 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 will not be discrimination where it is:

  • not unlawful under a State or Territory anti-discrimination law; or
  • taken because of the inherent requirements of the particular position concerned; or
  • taken by an institution that is run in accordance with religious beliefs against staff members of the institution

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 attributes listed above.

Adverse action by an employer includes things like:

  • firing someone
  • not giving someone their legal entitlements
    • withholding pay or annual leave loading
  • changing someone’s job to their disadvantage
    • like taking away overtime or putting them onto shift work
  • treating someone differently to others
    • always making one person do the unpleasant jobs, for example cleaning the toilets, instead of sharing the task amongst 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

An example of discrimination in the workplace is an employer who terminates the employment of a female employee because she is pregnant.

Where to go for help

The ABCC may be able to assist building employees who consider they have been subjected to unlawful discrimination.

There are a number of additional Federal and State laws that also protect against discrimination, including non-workplace related discrimination. For more information, contact:

Need more information?

For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.