Workplace discrimination fact sheet

Read our fact sheet on workplace discrimination.

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What is unlawful workplace discrimination?

Employees and potential employees are protected from discrimination at work. Workplace discrimination under the Fair Work Act can occur when an employer takes harmful adverse action against an employee or prospective employee because they have a certain feature or attribute (known as a ‘protected attribute’). A protected attribute is a person’s:

  • race
  • colour
  • sex
  • sexual orientation
  • breastfeeding
  • gender identity
  • intersex status
  • age
  • physical or mental disability
  • marital status
  • family or carer’s responsibilities
  • pregnancy
  • religion
  • political opinion
  • national extraction
  • social origin
  • experiencing (or having experienced) family and domestic violence.

What is adverse action?

Employers who take harmful action (known as adverse action) against employees and potential employees because of discrimination may break general protections laws in the Fair Work Act. The Fair Work Act describes several adverse actions.

Adverse action taken by an employer includes doing, threatening, or organising any of the following:

  • dismissing an employee
  • injuring an employee in their employment
  • altering an employee’s position to their detriment
  • discriminating between one employee and other employees
  • refusing to employ a prospective employee
  • discriminating against a prospective employee on the terms and conditions in the offer of employment.

For more information on adverse action and other rights protected from certain unlawful action, please see our Protections at work fact sheet.

Example

Sally is employed at an advertising firm. Recently, Sally applied for a promotion for a vacant Account Manager position in the firm.

During the interview, Sally mentions to the manager that she is pregnant and plans on taking her entitlement to parental leave.

Although Sally is highly qualified for the job, her manager tells her that she did not receive the promotion because she would be taking her parental leave.

Denying Sally this position because she is pregnant is prohibited under the Fair Work Act.

Who is covered by these protections?

Employees and prospective employees in the Fair Work system are among those covered by these protections. It is unlawful for an employer to discriminate against an employee. This includes full-time, part-time and casual employees, probationary employees, apprentices and trainees, and individuals employed for a set period of time or season. It is also unlawful to refuse to hire a prospective employee based on one of the protected attributes listed above.

What is not considered unlawful discrimination?

Treating someone differently is not necessarily unlawful discrimination. Different treatment for a reason other than a person's protected attribute, such as performance management to address performance concerns is not unlawful discrimination.

Under the Fair Work Act, an action is only considered adverse action for discriminatory reasons if it occurs due to one or more of the protected attributes, as listed above in What is unlawful workplace discrimination? If this is not the basis of the action, it may not be considered an act of unlawful discrimination.

Example

Paul is a marketing employee who made several substantial errors on his last project, and which has impacted the delivery of the project. To try and address this, Paul has been placed on a performance management plan to develop his skills.

However, Paul has continued to make substantial errors while on the plan. As such, Paul’s daily duties have been changed while he undergoes further training.

In this example, it is not unlawful to alter Paul’s employment because the reason is not based on his personal attributes, for example race, sex, age or disability.

The Fair Work Act also provides that in some circumstances an action may not be considered discrimination. This includes where the action:

  • is permissible under Commonwealth, state or territory anti‑discrimination laws
  • is based on the inherent requirements of the particular position concerned
  • is taken against a staff member of an institution run in accordance with religious beliefs, and the action is taken in good faith and to avoid injury to those religious beliefs.

What do I do if I've experienced discrimination at work?

There are a range of anti-discrimination laws and bodies that might be able to help you depending on your circumstances.

If you are a member of a trade union or employee association, they may also be able to help you.

We can investigate most types of allegations of unlawful workplace discrimination and may initiate litigation against a national system employer for contravening the Fair Work Act.

If you believe that you and/or other employees have been unlawfully discriminated against in your employment, you can contact us on 13 13 94 to discuss your situation. Because different laws and bodies deal with different types of discrimination matters, we may refer you to another organisation that is better placed to assist. You can find contact details for these organisations on our Related government sites page.

I've experienced discrimination but haven't been dismissed

If you have not been dismissed but allege that there has been a contravention of the discrimination protection provisions of the Fair Work Act, you may make an application to the Fair Work Commission to deal with the dispute.

To find out more about general protections applications not involving dismissal, visit the Fair Work Commission's website.

I've been dismissed for a discriminatory reason

If you have been dismissed and you believe that it is because of one of the protected attributes listed above, for example, your race, sex, age, disability, you should make an application to the Fair Work Commission in the first instance.

The timeframe for lodging an application to the Fair Work Commission in relation to general protections dismissal is 21 days.

To find out more about matters involving dismissal, visit the Fair Work Commission's website.

The Fair Work Commission's role

The Fair Work Commission's role in a general protections application is generally limited to dispute resolution. They will work with you and the employer to try to resolve the dispute.

If an agreement is reached, then the case is closed. If no agreement is reached, the Fair Work Commission will issue a certificate to allow the case to go to court. You will have 14 days after the certificate is issued to either:

  • apply to the Federal Court or the Federal Circuit and Family Court to decide the case, or
  • both parties can agree to apply for arbitration by the Fair Work Commission.

What are the remedies or penalties for unlawful discrimination?

Under the general protections in the Fair Work Act, there are various remedies and penalties for adverse action on discriminatory grounds.

Where the Federal Court or Federal Circuit and Family Court of Australia determines that a person has contravened the discrimination protections under the Fair Work Act, the court may make any order that it considers appropriate, including orders for injunctions, reinstatement and/or compensation.

A court can also impose penalties for these contraventions. You can check the current maximum penalty amounts on our Litigation page.