Workplace rights, equal opportunity and discrimination

Contributed by CatherineRusso and current to 27 July 2018

General protections and workplace rights

Under the FW Act, there are a range of workplace protections aimed at recognising the right to freedom of association, and preventing discrimination and certain types of unfair treatment.

Employees cannot be dismissed or subjected to other detrimental action because they have certain rights, entitlements or attributes. For example, an employer cannot:

• take adverse action against an employee because of the employee's workplace rights or industrial activities (including freedom of association);
• engage in behaviour intended to coerce an employee to exercise, or not exercise, his or her workplace rights;
• take adverse action against an employee because of a particular attribute of the employee (for example, the person's race, colour, sex, age, disability); or
• knowingly or recklessly make false and misleading statements about a person's workplace rights.

The general protections provisions also apply to and protect employers, independent contractors, unions and prospective employees in certain circumstances.

Importantly, the general protections provisions carry a reverse onus of proof. This means that where an employee alleges that adverse action has been taken for a prohibited reason or with a particular intent, the court will presume that this is the case unless the employer can prove otherwise. For this reason, the general protections regime is generally more desirable for complainants than other potential claims under state or federal anti-discrimination laws.

What is adverse action?

“Adverse action” is taken by an employer against an employee if the employer:

Adverse action may also be taken by principals, employees, independent contractors, or unions. Section 342 of the FW Act sets out a table describing the relevant "adverse action" depending on the different relationships between the relevant parties.

Under the FW Act, a person must not take adverse action against another person, including:

• because that person has a workplace right;
• because that person has or has not exercised a workplace right (or proposes to or not to do so); or
• to prevent the exercise of a workplace right by the other person.

A person has a “workplace right” if the person:

• is entitled to the benefit of a workplace law, workplace instrument or order;
• has a role or responsibility under a workplace law, workplace instrument or order;
• is able to initiate or participate in proceedings under a workplace law or workplace instrument; or
• is able to make a complaint or inquiry to seek compliance with a workplace law or workplace instrument or, in the case of an employee, in relation to his or her employment.

The High Court decision of Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32 remains the leading adverse action case. In that case, the High Court held that reliable evidence from the decision-maker could discharge the reverse onus on the employer. Direct evidence from the decision-maker on their state of mind, intent or purpose in taking the adverse action would be relevant to the court's determination of the reason for their action. Ultimately, the court must balance the evidence led by the employer about the decision-maker’s particular reasons and the overall facts and circumstances of the case.

Other protections

General protections also relate to:

• coercion - prohibiting taking action against a person with the intent to coerce them to exercise, or not to exercise, a workplace right (or to exercise it in a particular way);
• undue influence or pressure - prohibiting the exercise of undue influence or pressure by an employer on an employee in relation to various matters set out in the FW Act, including agreeing to an individual flexibility arrangement or accepting a guarantee of annual earnings;
• misrepresentation - making misrepresentations regarding another person's workplace rights or the exercise or effect of a workplace right of another person; and
• temporary absence – prohibiting an employer from dismissing an employee because the employee is temporarily absent from work because of illness or injury.

The FW Act also provides protection in respect of industrial activities (broadly defined as lawful union activity and participation in lawful industrial action) and against discrimination.

Adverse action is prohibited against another person because:

• the other person is or is not a member of an industrial association, or engages or proposes to engage (or does not engage or proposes not to engage) in industrial activity; or
• of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

Further information

The FWC publishes a general protections benchbook that provides further information about how to lodge or respond to general protections applications. The benchbook can be accessed at: https://www.fwc.gov.au/resources/benchbooks/general-protections-benchbook

Equal opportunity laws

Australia has a number of equal opportunity laws at both state and federal levels that prohibit unlawful discrimination, harassment and victimisation including:

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

Anti-discrimination legislation prohibits discrimination, including terminating employment, on various grounds such as sex, race, marital status, pregnancy, age, religious belief. It also prohibits victimisation of an employee, such as dismissing an employee because they have made a discrimination complaint. These provisions are an alternative to proceedings alleging adverse action on discriminatory grounds under the FW Act.

A complaint may be made to an anti-discrimination tribunal on the basis that the employer's conduct was unlawfully discriminatory.

Parental leave and flexible work arrangements

Paid parental leave

The federal government’s Paid Parental Leave scheme applies to parents who are the primary carer of a child, whether by birth or adoption. It is a government-funded scheme administered by the Department of Human Services, although in most cases payments will be made through the employee’s employer.

Prior to 2011, while Australia provided some financial assistance for costs associated with newborn or adopted children, it was one of only two Organisation for Economic Co-operation and Development countries, the other being the USA, without a national paid parental leave scheme.

Under the Paid Parental Leave Act 2010 (Cth), eligible employees are entitled to up to 18 weeks' paid leave at the national minimum wage. In addition, eligible working dads or partners (including adopting parents and same sex couples), may get up to 2 weeks of pay at the national minimum wage.

Where an employer already provides paid parental leave to its employees as a term of a contract, industrial agreement or award, it cannot reduce the benefit as a result of an employee being entitled to a benefit under the federal government’s Paid Parental Leave scheme. If, however, paid parental leave is a benefit paid at the employer’s discretion, for example, under a non-contractual policy, the terms under which employer-funded parental leave is paid can be revisited.

Unpaid parental leave and other entitlements

An entitlement to unpaid parental leave is one of the minimum conditions of employment under the NES and Minimum Conditions of Employment Act 1993 (WA), described above.

In addition, the NES provides:

• Return to work guarantee—An employee is entitled to return to their former position at the end of the parental leave period. If that position no longer exists, the employee is entitled to return to an available position for which the employee is qualified and suited and which is nearest in status and pay to the pre-parental leave position. If no role exists, there is no obligation on an employer to create a role. However, the obligation to return the employee to another available role appears to be quite broad, and is only limited by the requirement to be 'nearest' in status and pay.
• Transfer to a safe job—Pregnant employees are entitled to transfer to a safe job because of illness or risk arising out of pregnancy or hazards connected with their current position, regardless of the employee's length of service or whether the notice requirements for the taking of unpaid parental leave have been met. Employees who are eligible for unpaid parental leave are entitled to paid 'no safe job leave' in the event that there is no appropriate safe job available. Employees who would otherwise not be entitled to unpaid parental leave are also entitled to unpaid 'no safe job leave', but only for the risk period.

Flexible work arrangements

Flexible work arrangements are any arrangements agreed between an employer and an employee that allow the employee to work in a non-standard way. Flexible work arrangements include working from home, part-time work, job sharing, condensed working work and flexible hours of work (such as starting work later or finishing earlier).

Under state and federal equal opportunity legislation, if an employee makes a request for flexible work arrangements and the reason for that request is linked to a protected attribute—for example, the request is made to accommodate the employee’s disability, parental or carer responsibilities or their age—then an employer who unreasonably refuses that request may be found to have engaged in unlawful indirect discrimination. This could be pursued under state or federal equal opportunity legislation or as an adverse action claim under the FW Act.