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Avoiding discrimination in the workplace

By Beatrice Thomas

Workplace discrimination does not need to be intended for it to be unlawful.

But with a raft of State and Federal legislation governing anti-discrimination in WA, understanding the details can be complex.

Here are the key laws you need to know.

Workplace discrimination

Defining discrimination 

The Fair Work Act defines unlawful discrimination as “when an employer takes adverse action against a person who is an employee or prospective employee” because of the following attributes:

  • 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.

Discrimination can be direct – that is, when a person is treated less favourably than another person in the same of similar circumstances. For example, refusing to interview someone for a job because of their age.

Or it can be indirect - that is, when a person is disadvantaged as an indirect result of another person’s actions. For example, if a place of work does not have disabled access lifts or ramps it could be discriminatory against disabled people.

What are the discrimination laws?

Federal laws that cover discrimination are:

Racial Discrimination Act 1975

Unlawful to discriminate against a person on the ground of race, colour, descent, national or ethnic origin.

Disability Discrimination Act 1992

Unlawful to discriminate against a person on the ground of disability.

Sex Discrimination Act 1984

Unlawful to discriminate against a person on the ground of sex, marital or relationship status, gender identity, sexual orientation, pregnancy or potential pregnancy, breastfeeding or family responsibilities (in some circumstances).

Age Discrimination Act 2004

Unlawful to discriminate against a person on the ground of age.

Human Rights and Equal Opportunity Commission Act 1986

Include grounds on which complaints of discrimination in employment can be made to the Human Rights Commission.

The Fair Work Act 2009 also covers a number of grounds relating to discrimination against staff.

In addition, anti-discrimination is also covered in WA by the Equal Opportunity Act 1984 and Industrial Relations Act 1979.

The latter makes it unlawful to discriminate against a person if they are or are not a member of a union.

Application in workplaces

It is unlawful to discriminate against a person when:

  • deciding who should be offered employment;
  • the terms on which employment is offered; and
  • the terms and conditions of employment, and allocation or access to benefits (e.g. promotion and training).

It is important to keep in mind that it is possible to discriminate against prospective employees as well as existing workers. You must keep this in mind at each stage of recruitment.

Case study

In June 2020, WA labour hire company CoreStaff WA was found to have discriminated against a worker because of his age.

In October 2018, a HR advisor from contractor Gumala emailed CoreStaff WA about a 70-year-old man who expressed interest in a grader position.

The email stated that Gumala had concerns about the man’s age, despite him having all the necessary qualifications.

The labour hire company then emailed the man, stating that he had “no joy at Gumula due to (his) age”.

The case was heard in the Federal Court, which found CoreStaff’s decision to refuse the man’s application was “substantially based on the grader’s age”.

ABCC v CoreStaff WA Pty Ltd [2020] FCA 893 (26 June 2020)

Our team of Workplace Relations experts can help you with customised advice on discrimination matters.

Call CCIWA's Employee Relations Advice Centre on (08) 9365 7660 or via advice@cciwa.com

CCIWA’s eLearning Library has a suite of interactive modules on topics to help run your business, including workplace discrimination.

Workplace discrimination does not need to be intended for it to be unlawful.

But with a raft of State and Federal legislation governing anti-discrimination in WA, understanding the details can be complex.

Here are the key laws you need to know.

Workplace discrimination

Defining discrimination 

The Fair Work Act defines unlawful discrimination as “when an employer takes adverse action against a person who is an employee or prospective employee” because of the following attributes:
  • 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.

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