Workplace Discrimination (ACT)

A worker who experiences discrimination in the ACT may complain under either the federal legislation or under the ACT legislation. In the ACT, the Discrimination Act 1991 prohibits discrimination on the basis of certain attributes and the Human Rights Commission Act 2005 establishes processes for complaints about discrimination in the ACT. At the federal level, the Fair Work Act 2009 contains anti-discrimination provisions and complaints can be made to the Human Rights Commission. This page deals with workplace discrimination in the ACT.

Territory vs federal systems

All ACT employees are covered by the Fair Work system as well as by the ACT Discrimination Act 1991. However, contractors, partners and commission workers in the ACT are not covered by the federal system. They are covered by the territory system only. Accordingly, some ACT workers can only complain about discrimination under the ACT system. Other ACT workers may complaint either at territory or at federal level.

Discrimination Act 1991

The Discrimination Act 1991 defines discrimination as occurring when:

• a person treats, or proposes to treat, another person less favourably because the other person has a protected attribute; or
• a person imposes, or proposes to impose, a condition or requirement that is likely to disadvantage another person because they have a protected attribute.

Under section 7 of the Discrimination Act 1991, the following are protected attributes:

• accommodation status
• age
• association with a person who is identified by reference to another protected attribute
• breastfeeding
• disability
• employment status
• gender identity
• genetic information
• immigration status
• industrial activity
• irrelevant criminal record
• parent, family, carer or kinship responsibilities
• physical features
• political conviction
• pregnancy
• profession, trade, occupation or calling
• race
• record of a person’s sex having been altered
• relationship status
• religious conviction
• sex
• sex characteristics
• sexuality
• subjection to domestic or family violence

The Act makes it unlawful to discriminate against employees, contract workers, in partnerships, or against commission workers. Discrimination is unlawful when determining who should be offered work and when deciding the terms and conditions on which it is offered.

Unlawful discriminatory conduct can occur at work or at work-related events and functions.

Complaints under the ACT legislation

A person can make a complaint about unlawful discrimination under the Discrimination Act 1991 to the Anti-Discrimination Commissioner.

The Commission may:

• consider the complaint
• refer the complaint for conciliation between the parties
• dismiss the complaint
• refer the matter to the ACT Civil and Administrative Tribunal for determination

The ACAT can hear discrimination complaints referred to it by the Commission. ACAT may refer the parties to mediation where this is appropriate. If the ACAT hears a discrimination claim and finds that it is substantiated, it may order the perpetrator to stop the discriminatory conduct. It may also make orders to compensate the complainant for their losses.

Federal workplace discrimination laws

All ACT employees are also covered by the federal Fair Work system.

Under section 352 of the Fair Work Act 2009, an employer must not take adverse action against an employee or prospective employee because of their race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.

However, there are several exceptions to this prohibition. Discrimination is not unlawful where the action is taken because of the inherent requirement of the position. It is not unlawful where the action is taken by a religious institution in accordance with its religious beliefs in good faith and to avoid injury to religious susceptibilities of believers.

Complaints to the Human Rights Commission

A person who has a discrimination complaint under the Fair Work Act 2006 can complain to the Australian Human Rights Commission (HRC). When the HRC receives a complaint, it notifies the other party and gives them the opportunity to respond. It may then refer the matter to conciliation if it is appropriate.

At conciliation, an independent third party will assist the parties to try to resolve the complaint. If a complaint cannot be resolved at conciliation, it will be terminated. The complainant may then be able to take the matter to the Federal Court or to the Federal Circuit and Family Court of Australia. This must be done within 60 days.

Other federal legislation

The following federal anti-discrimination legislation also applies to people in the ACT. These Acts impose anti-discrimination protections that apply both in the workplace and in other areas of public life:

• Age Discrimination Act 2004
• Disability Discrimination Act 1992
• Racial Discrimination Act 1975
• Sex Discrimination Act 1984;

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.