Other Types Of Discrimination

Beyond sex, race, age, disability and religion, the law also protects you from discrimination because of your political opinion, marital status, breastfeeding, being subject to family and domestic violence, union membership or activity, and some less familiar grounds. Some of these protections are narrower than they sound.

Discrimination is being treated less favourably than others at work because of a protected attribute, or being subjected to a rule that looks neutral but unreasonably disadvantages people with that attribute. Our other pages cover the most common grounds. This page covers the rest.

Section 351 of the Fair Work Act 2009 (Cth) protects employees from adverse action because of race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer's responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin. The WA Equal Opportunity Act 1984 (WA) covers a list that overlaps but is not the same.

Family and domestic violence

Since 15 December 2023, being subject to family and domestic violence has been a protected attribute under s 351. An employer must not dismiss you, demote you or otherwise take adverse action against you because of it. You are also entitled to 10 days of paid family and domestic violence leave each year, available in full to part-time and casual employees (s 106A), and you can request flexible working arrangements (s 65).

Marital or relationship status and breastfeeding

It is unlawful to treat you less favourably because you are single, married, in a de facto relationship, separated, divorced or widowed, or because you are breastfeeding or expressing milk. The Sex Discrimination Act, the Fair Work Act and the Equal Opportunity Act all cover these grounds.

Unpaid fines published by the Fines Enforcement Registrar

A ground unique to Western Australia: the Equal Opportunity Act prohibits discrimination in work because your details have been published on the Fines Enforcement Registrar's website (Part IVC).

Political Opinion
Political Opinion

Some employees experience discrimination in the workplace because of their political opinion. Under s 351 of the Fair Work Act, an employer must not take adverse action against an employee because of their political opinion. That includes views about government, public power and how society should be run, not just party membership. Courts have proceeded on the basis that expressing an opinion, not only holding it, is protected, although that point is not finally settled.

The Fair Work Act protection applies only where the action is also unlawful under an anti-discrimination law where it happened (s 351(2)(a)). In Western Australia the Equal Opportunity Act covers religious or political conviction, so the protection generally works for WA employees.

Two cautions. Union membership is not, by itself, a political opinion, although union activity has its own protection (below). And an employer can still act on genuine misconduct in the way an opinion was expressed, such as abusive posts about colleagues. The question is always whether the opinion itself was a substantial and operative reason for what the employer did.

See where to make a discrimination complaint for the routes and time limits.

Social Origin

Social origin appears in the Fair Work Act's list of protected attributes. It is generally understood to be about the social class, caste or background you come from. It is not a catch-all for any group or lifestyle, and membership of a particular organisation has been held not to be social origin.

In practice, the protection is narrow. Social origin is not a ground under the Commonwealth discrimination Acts or the WA Equal Opportunity Act, and s 351 applies only to action that is unlawful under one of those laws where it happened (s 351(2)(a)). So a general protections claim based on social origin alone is unlikely to succeed for an employee in Western Australia.

There are two partial exceptions. Unlawful termination under s 772 of the Fair Work Act also lists social origin, without that restriction, and is available to employees who cannot bring a general protections claim, such as WA state-system employees. And the Australian Human Rights Commission can inquire into and try to conciliate a complaint of discrimination in employment on this ground, although it cannot order a remedy.

If you think you have been treated differently because of your background, get advice: the facts often fit a different ground, such as race, national extraction or age, better.

What Is Discrimination Based On Trade Union Activity?

The Fair Work Act protects freedom of association. An employer must not take adverse action against you because you are, or are not, a member of a union, or because you take part, or refuse to take part, in lawful union activity, such as being a delegate, attending a union meeting, or taking part in bargaining (ss 346, 347). As with the other general protections, the employer must prove the union activity was not a reason for its action (s 361).

For WA state-system employees, Part VIA of the Industrial Relations Act 1979 (WA) makes discrimination because of union membership or non-membership an offence, prosecuted in the Industrial Magistrates Court, and dismissal because of union membership or activity is also covered by unlawful termination under s 772 of the Fair Work Act. If you were dismissed, the 21-day time limit applies.

What Is Discrimination Based On Trade Union Activity?

How Can We At MKI Legal Help You?

If you think you have been treated unfairly at work for any of these reasons, we can tell you which protection fits your situation and which deadline applies. Contact us for a free and confidential initial telephone discussion.

Case studies

How the law played out in real cases

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Published decisions of courts and tribunals, summarised in plain English from the published decision. Every case turns on its own facts.