I believe that I’m being discriminated against at my workplace. What are my rights?
Your Rights Under The Fair Work Act for Discrimination in the Workplace
The Federal Government’s Fair Work Act protects against discrimination for employees covered by the federal system. One way that the Fair Work Act does this is through its “general protections provisions”.
Section 351 of the Fair Work Act states that an employer must not take “adverse action” against an employee, or prospective employee, because of any of the following:
- race or colour;
- sexual orientation;
- physical or mental disability;
- marital status;
- family or carer’s responsibilities;
- political opinion ;
- national extraction; or
- social origin.
“Adverse action” by an employer can include any of the following:
- terminating the employee;
- withholding an employee’s legal entitlements (such as annual leave pay);
- injuring the employee;
- demoting an employee;
- refusing to hire a prospective employee; and
- treating an employee differently to other employees.
A Claim to The Australian Human Rights Commission
The Australian Human Rights Commission can take action against discrimination under the following laws:
- the Australian Human Rights Commission Act 1986 (Cth);
- the Racial Discrimination Act 1975 (Cth);
- the Sex Discrimination Act 1984 (Cth);
- the Disability Discrimination Act 1992 (Cth); and
- the Age Discrimination Act 2004 (Cth).
Under these laws, the Australian Human Rights Commission can investigate complaints of discrimination based on any of the following:
- disability (both physical and mental);
- criminal record (in employment context only);
- trade union activity (in employment context only);
- political opinion (in employment context only);
- religion (in employment context only); and
- social origin (in employment context only).
A complaint to the local state or territory anti-discrimination body
There are also State and Territory laws against discrimination. If you have been discriminated against and there was a breach of an applicable State or Territory law, then you may be able to make a complaint to your local State and Territory anti-discrimination body.
When can I complain about bullying and harassment?
Under the Fair Work Act, it is an employee’s “workplace right” to be able to make a complaint about their employment. Therefore, if you complain about bullying or harassment in the workplace, your employer cannot take “adverse action” against you as a result.
As mentioned earlier, “adverse action” includes terminating an employee, as well as many other actions. It doesn’t matter if bullying or harassment didn’t actually occur in the first place. It is your workplace right to make a complaint about your employment.
If you made a complaint about bullying or harassment in your workplace and you were terminated or disadvantaged in some way as a result, you may be entitled to lodge a general protections claim.
What is “bullying” under the law?
Under the Fair Work Act, a worker is “bullied at work” when:
- an individual, or a group of individuals, repeatedly behaves unreasonably towards the worker, or a group of workers of which the first said worker is a member; and
- the behaviour creates a risk to health and safety.
“Reasonable management action carried out in a reasonable manner”, however, is not bullying under the Fair Work Act.
Can I take legal proceedings against bullying?
If you are covered by the federal system, you can make a formal application to the Fair Work Commission for an “order to stop bullying”.
What Are My Rights If I’ve Been Sexually Harassed?
You may be able to lodge a complaint to the Human Rights Commission. Visit sexual harassment page for more information.
Contact us for a free discussion if you believe you have been discriminated, bullied or harassed.