Discrimination and Harassment

Workplace discrimination occurs when a person is treated less favourably because of a protected attribute. Under the Fair Work Act 2009 (Part 3-1) and federal anti-discrimination legislation, protected attributes include: race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction, and social origin. Following the Respect at Work and Closing Loopholes reforms, the Fair Work Act's protected attributes also include breastfeeding, gender identity, and intersex status (from 13 December 2022), and being subjected to family and domestic violence (from 15 December 2023). Discrimination can be direct (being passed over for promotion because of gender) or indirect (a workplace policy that appears neutral but disproportionately affects a particular group, such as requiring all staff to attend evening client events when this disadvantages parents with caring responsibilities). Both forms are unlawful.

Sexual harassment is any unwelcome sexual advance, unwelcome request for sexual favours, or other unwelcome conduct of a sexual nature that a reasonable person would anticipate would offend, humiliate, or intimidate. Since 13 December 2022, employers have had a positive duty under section 47C of the Sex Discrimination Act 1984 to take reasonable and proportionate measures to eliminate sexual harassment. From 12 December 2023, the Australian Human Rights Commission has had powers to investigate and enforce compliance with that duty, even without a complaint being lodged. Separately, since 6 March 2023 the Fair Work Act has prohibited sexual harassment in connection with work, with its own complaint pathway through the Fair Work Commission.

If we experience or witness discrimination or harassment: document everything, dates, times, what was said or done, any witnesses; make a note as close to the time of the incident as possible (contemporaneous notes carry significant weight); if safe to do so, tell the person their behaviour is unwelcome and ask them to stop; report the conduct to a manager, HR representative, or workplace health and safety representative; if the employer fails to act, or if the conduct involves the employer, external options are available. We can contact UAW for confidential advice and support at any stage. We don’t have to navigate this alone, and we don’t have to make a formal complaint to get help.

Several external bodies can receive complaints and take action. The Fair Work Commission handles general protections applications (including adverse action related to discrimination) under Part 3-1 of the Fair Work Act. The Australian Human Rights Commission handles complaints under federal anti-discrimination legislation (Sex Discrimination Act 1984, Racial Discrimination Act 1975, Disability Discrimination Act 1992, Age Discrimination Act 2004). State and territory bodies include: the Victorian Equal Opportunity and Human Rights Commission; the Anti-Discrimination Board of NSW; the Queensland Human Rights Commission; and equivalent bodies in each state and territory. WorkSafe authorities in each state can also investigate workplace bullying and harassment as a health and safety issue. Complaints to these bodies are generally free, and legal representation is not required.