The new discrimination laws: The great unknown
July 2009
Workplace discrimination has long been an issue at the forefront of the minds of employers, human resources managers and employees alike.
The commencement of the Fair Work Act, from 1 July 2009 means that most Australian workplaces will be covered by a new system created by the Act. Among other things, the Act makes significant changes to discrimination law in the workplace.
The term 'discrimination', used broadly, means different treatment. Under the new laws, discrimination is unlawful when an employer takes 'adverse action' against an employee or prospective employee for a prohibited reason. The majority of people would be able to list most of the prohibited reasons, such as race, sex, age, sexual preference, physical or mental disability and religion.
'Adverse action' is action that is unlawful if it is engaged in for particular reasons. It includes dismissing an employee, discriminating between one employee and another, and refusing to employ a prospective employee.
Until recently workplace discrimination (other than in dismissal cases) was dealt with by a number of regulatory agencies, the State Equal Opportunity Commission and the Federal Human Rights and Equal Opportunity Commission, with numerous overlapping of Federal and State laws.
This responsibility is now shared with the newly established Fair Work Ombudsman who will help employers, employees and independent contractors to understand and comply with the new Act. It will also use powers bestowed by the Fair Work Act to investigate companies for discrimination against workers.
Changes under the new Act give employees the right to claim unlimited damages (as opposed to the cap of $40,000 under WA equal opportunity law) and the removal of costs orders against unsuccessful claimants.
The most widely publicised change is the reverse onus of proof where an employer must show the alleged discrimination did not occur, prompting employers to claim they risk being treated as "guilty until proven innocent". This substantial advantage to employees does not apply under general discrimination law.
These recent changes should encourage employers, now more than ever, to consider their responsibilities, develop effective workplace polices and best practice guidelines, and establish and implement complaints procedures. The actual application of these new laws is very much a case of wait and see, until the first cases are decided and principles are established.
For further information on the new laws or advice on this issue, please contact Mark Hemery, Principal, on mhemery@talbotolivier.com.au or David Paton, Solicitor, at dpaton@talbotolivier.com.au.
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