1. Background
Since coming into operation on 1 July 2009, the Fair Work Act has protected employees (including
potential employees) from discrimination based on various attributes.
Section 351 sets out the attributes, which include race,
colour and marital status.
This provision prevents employers from taking “adverse
action” against employees based on these grounds.
For an attribute to be protected by the Fair Work Act, it must also be protected by an anti‑discrimination
law. For example, discrimination against
a person because of race is unlawful under the Racial Discrimination Act 1975.
In practical terms, adverse action usually means dismissal,
suspension, pay cuts or discriminating between an employee and other
employees. Adverse action also includes
action that “injures” employees - a term that has been defined as widely as to include
the deterioration of an employee’s relationship with the employer.
2.
What
has changed?
As of 1 August 2013, the Sex
Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex
Status) Act 2013 came into effect, extending the grounds of discrimination
in the Sex Discrimination Act and
thus the Fair Work Act to include:
·
sexual orientation,
·
gender identity,
·
intersex status, and
·
relationship status.
3.
What
is protected and examples of potential discrimination
Sexual orientation: an employee’s sexual orientation, whether this be sex,
different sex or both sexes.
Example of discrimination: an employer
of a gay club who does not employ heterosexual bar staff may be discriminating
against potential employees on the basis of their sexual orientation.
Gender identity: an employee’s gender‑related identity,
appearance, mannerisms or other gender‑related characteristics (whether by way
of medical intervention or not), with or without regard to their designated sex
at birth.
Example of discrimination: an employer
with a uniform policy based on sex.
Intersex status: having physical, hormonal or genetic features that are
neither wholly male nor wholly female, a combination of female and male, or
neither female nor male.
Example of discrimination: an employer
who requires potential employees to tick male or female on job application
forms may be discriminating against potential employees who do not identify as
either male or female.
Relationship status: as opposed to
marital status, this includes de facto couples of the same or different sex.
Example: a retail employer who permits employees’ spouses to
have a discount may be discriminating against employees in de facto
relationships.
4.
What
do you need to do?
These amendments to the Fair
Work Act demonstrate its ongoing commitment to the protection of employees,
and a broader recognition of evolving social attitudes.
As the Coalition’s election policy has not included proposed
changes to workplace relations, we can expect these grounds of protection to
remain even with a change of government on 7 September 2013.
We recommend employers inform and advise their staff about
the changes.
Key decision makers in human resources and upper management need
to be well informed about what the new protected attributes cover and how this
may affect the way your company is run.
A good starting point is to review and update all company
policies – starting with the anti-discrimination and bullying policies and
inform employees of their rights and responsibilities.
Emma Pollett-Sutton
Lawyer
Emma Pollett-Sutton
Lawyer
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