Where To Make A Discrimination Complaint

If you have been treated badly at work because of your sex, race, age, disability, pregnancy, family responsibilities, sexual orientation, religion or another protected attribute, the law gives you more than one way to act. For most people working in Western Australia there are three routes:

1. a general protections claim under the Fair Work Act 2009 (Cth), starting at the Fair Work Commission;
2. a complaint to the Australian Human Rights Commission under one of the four Commonwealth discrimination Acts;
3. a complaint to the WA Equal Opportunity Commission under the Equal Opportunity Act 1984 (WA).

They have different time limits, different tests and different remedies. In most cases, starting one route closes the others for the same conduct. So the choice matters, and it is best made before you lodge anything.

The Three Routes At A Glance

	Fair Work Act general protections	Australian Human Rights Commission	WA Equal Opportunity Commission
Law	s 351 of the Fair Work Act 2009 (Cth)	Sex, Race, Disability and Age Discrimination Acts, through the Australian Human Rights Commission Act 1986 (Cth)	Equal Opportunity Act 1984 (WA)
Who can use it	Employees and prospective employees of a national system employer (most private companies)	Employees, contractors, job applicants and others covered by the Act	Anyone working in Western Australia, in either the national or the state system
Time limit	21 days if you were dismissed; if you were not dismissed, no 21-day limit applies, but get advice promptly	The Commission may end a complaint lodged more than 24 months after the conduct	12 months after the conduct; later only if you show good cause
First step	Fair Work Commission conference	Conciliation by the Commission	Investigation and conciliation by the Commissioner
Who decides if it does not settle	Federal Court or Federal Circuit and Family Court	Federal Court or Federal Circuit and Family Court	State Administrative Tribunal
Compensation	No cap; can include hurt and distress; penalties too	No cap	Capped at $40,000
Proof of the reason	Your employer must prove it did not act for the prohibited reason	You must prove the discrimination	You must prove the discrimination

Route 1: General Protections Under The Fair Work Act

Section 351 of the Fair Work Act stops an employer taking adverse action against an employee or prospective employee because of their 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.

Adverse action includes dismissing you, injuring you in your employment, changing your position to your disadvantage, treating you differently from other employees, and refusing to hire you or offering you worse terms.

What makes this route strong:

• The reverse onus. Once you show you have the attribute and that adverse action was taken, the law presumes the attribute was a reason unless your employer proves otherwise (s 361). The attribute does not need to be the only reason, but it must be a substantial and operative one.
• No cap on compensation. A court can order compensation for your financial loss and, in the right case, for hurt, distress and humiliation, plus reinstatement and penalties against the employer and anyone involved.

Its limits:

• Employees only. It does not cover independent contractors.
• It must also be unlawful under a discrimination law. Section 351 does not apply to action that is not unlawful under an anti-discrimination law in force where it was taken (s 351(2)(a)). In Western Australia the Equal Opportunity Act and the Commonwealth Acts cover most grounds, but not all (social origin is the main gap).
• Inherent requirements. Action taken because of the inherent requirements of the particular job is not unlawful (s 351(2)(b)).

How it runs:

• If you were dismissed: lodge Form F8 with the Fair Work Commission within 21 days (s 366). The fee is $92.70 for 2026-27 and can be waived for serious hardship. The Commission holds a conference. If the matter does not settle, it issues a certificate, and you then have 14 days to start proceedings in the Federal Court or the Federal Circuit and Family Court (s 370).
• If you were not dismissed: you can ask the Commission to hold a conference, but only if your employer agrees to take part (ss 372, 374). Otherwise the claim goes straight to court. No 21-day limit applies, but delay weakens a claim and there are limitation questions a lawyer should check for you.

If your employer is the WA Government, a WA council or a business that is not a company, see the section below on working for the WA Government, a council or a sole trader.

Route 2: The Australian Human Rights Commission

The Australian Human Rights Commission handles complaints under four Commonwealth Acts:

Act	Grounds covered in work
Sex Discrimination Act 1984 (Cth)	Sex, sexual orientation, gender identity, intersex status, marital or relationship status, pregnancy or potential pregnancy, breastfeeding, family responsibilities; sexual harassment; harassment on the ground of sex; a workplace environment hostile on the ground of sex
Racial Discrimination Act 1975 (Cth)	Race, colour, descent, national or ethnic origin; offensive behaviour because of race (s 18C)
Disability Discrimination Act 1992 (Cth)	Disability, including a failure to make reasonable adjustments; disability harassment
Age Discrimination Act 2004 (Cth)	Age, young or old

These Acts reach further than the Fair Work Act. They cover contractors, commission agents and job applicants, and indirect discrimination (a rule that looks neutral but disadvantages people with your attribute and is not reasonable).

How it runs, under the Australian Human Rights Commission Act 1986 (Cth):

1. Lodge a written complaint (s 46P).
2. Conciliation. The Commission investigates and tries to settle the complaint, usually at a conciliation conference.
3. Termination. If the complaint does not settle, the President terminates it and gives you a notice. The President may also terminate a complaint lodged more than 24 months after the conduct (s 46PH(1)(b)). That is a discretion, not a fixed bar, but do not rely on it.
4. Court. You then have 60 days from the date of the termination notice to apply to the Federal Court or the Federal Circuit and Family Court (s 46PO(2)). If the complaint was terminated because there was no reasonable prospect of settling it by conciliation (the usual reason), or because it raises an issue of public importance, you can go to court without permission. If it was terminated for another reason, for example because it was lodged out of time or lacked substance, you need the court's leave (s 46PO).

Two features favour this route for larger claims. There is no cap on damages. And since 2 October 2024 an applicant who wins must generally be awarded their costs, while an applicant who loses can be ordered to pay the other side's costs only in limited cases (s 46PSA).

Religion, political opinion and social origin are not grounds under any of the four Commonwealth Acts. The Commission can inquire into and try to conciliate complaints about those grounds in employment, but it cannot take them to court and cannot order a remedy (ss 31-32).

Route 3: The WA Equal Opportunity Commission

The Equal Opportunity Act 1984 (WA) applies to everyone working in Western Australia, whichever industrial system covers them. It is administered by the Commissioner for Equal Opportunity, whose office trades as the Equal Opportunity Commission.

It covers sex, marital status, pregnancy, breastfeeding, gender history, family responsibility or family status, sexual orientation, race, religious or political conviction, impairment, age, and publication of your details on the Fines Enforcement Registrar's website. It also covers sexual harassment, racial harassment and victimisation (being punished for complaining).

How it runs:

1. Lodge a written complaint within 12 months of the conduct (s 83(4)). Each act has its own 12 months, so older incidents in a course of conduct may be out of time. The Commissioner can accept a later complaint if you show good cause (s 83(5)).
2. Investigation and conciliation. The Commissioner investigates and tries to resolve the complaint. Lawyers may appear at conciliation only with the Commissioner's permission (s 92).
3. Referral to the State Administrative Tribunal. If conciliation fails, the complaint is referred to the Tribunal (s 93). If the Commissioner dismisses your complaint instead, you have 21 days after receiving the notice to require that it be referred anyway (s 90). There is no Tribunal fee.
4. Orders. The Tribunal can order damages of up to $40,000, order the employer to stop the conduct or to redress your loss, and make other orders (s 127).

This route suits a modest claim, a ground the Commonwealth Acts do not cover (religious or political conviction, family status, gender history), or someone who wants the Commissioner's help at the Tribunal. It is a poor fit for a claim involving a large loss of income, because of the cap.

If You Work For The WA Government, A Council Or A Sole Trader

Some Western Australians work outside the national system: for the WA public sector, a WA local government, or an employer that is not a company, such as a sole trader or a partnership. See Am I covered by the WA state system? to check.

If that is you:

• General protections (s 351) is not available against a WA government department or an employer that is not a company. Whether it reaches a WA council is unsettled, so get advice quickly if you work for one.
• If you were dismissed, you can bring an unlawful termination claim under s 772 of the Fair Work Act, which covers the same discrimination grounds. It must be lodged with the Fair Work Commission within 21 days (s 774). See Unlawful Termination.
• The Equal Opportunity Act and the Australian Human Rights Commission routes are open to you, exactly as above.
• The WAIRC has its own jurisdictions over bullying and sexual harassment. See the WA state system.

You Usually Have To Pick One

The law does not let you run the same complaint in several places at once.

• If you were dismissed, you can make only one application or complaint about the dismissal: a general protections, unfair dismissal or unlawful termination application, or a complaint under a discrimination law (ss 725, 732 of the Fair Work Act).
• If you were not dismissed, a general protections court application and a discrimination complaint about the same conduct exclude each other (s 734).
• Sexual harassment has its own rules, which differ between the Fair Work Commission, the Human Rights Commission, the Equal Opportunity Commission and the WAIRC. See Sexual Harassment.

The bar lifts only if the first claim is withdrawn or fails for want of jurisdiction. A complaint sitting in conciliation still counts. So choose before you lodge.

How To Choose

There is no single right answer, but these questions usually decide it:

• Were you dismissed, and when? If so, the 21-day limit for a general protections or unlawful termination application may be the first deadline, and it comes long before the others.
• How big is your loss? If you have lost your job or significant income, the $40,000 cap makes the Equal Opportunity Act route less attractive. The Fair Work Act and the Human Rights Commission have no cap.
• Can you prove why it happened? Discrimination is rarely admitted. The general protections reverse onus puts the burden of explaining the reason on the employer, which can make a real difference.
• Are you an employee? Contractors cannot use general protections, but can use the Commonwealth Acts or the Equal Opportunity Act.
• Which ground? Religion and political opinion are covered by the Fair Work Act and the Equal Opportunity Act, but not by the Commonwealth Acts. Family status and gender history are covered by the Equal Opportunity Act.
• Was it a rule rather than a decision about you? Indirect discrimination fits the discrimination Acts better than general protections.
• How long ago was it? Something more than 12 months old may be out of time under the Equal Opportunity Act, but may still be within the Human Rights Commission's 24 months.
• What worries you about costs? The Human Rights Commission route now carries strong costs protection for applicants.

What To Gather

Start collecting these now, even if you have not decided what to do:

• your contract, letter of offer, position description and any relevant policies;
• a timeline of what happened, with dates, who was involved and who saw it;
• emails, texts, messages and notes of conversations, kept outside your work systems where you are allowed to;
• any complaint you made and the employer's response;
• medical certificates and records of any effect on your health;
• payslips and evidence of any income you have lost;
• for a dismissal, the termination letter and any reasons given.

How We Can Help

We regularly advise employees in Perth and across Western Australia on discrimination at work. We can tell you which routes are open to you, what each is likely to involve, and which deadline comes first, then prepare and run the claim. Contact us for a free and confidential initial discussion.