As of 7 December 2022, three new protected attributes were added to the Fair Work Act as part of Secure Jobs, Better Pay Bill:
- Breastfeeding – This includes the act of expressing milk, the act of breastfeeding and the amount of time spent breastfeeding. Discrimination in this instance could look like making jokes about people who are seen to be breastfeeding at work.
- Intersex status – This includes employees being treated less favourably due to physical, genetic or hormonal features which mean they are not wholly female or male; are a combination of both male and female; or are neither female nor male. Discrimination might look like choosing not to hire/promote someone after learning of their intersex status, or engaging in bullying/exclusionary behaviours.
- Gender identity – This refers to someone’s gender-related identity, mannerisms or appearance, irrespective of the gender they were born with. Discrimination due to gender identity could be overt, such as exclusion or bullying, or less obvious, such as HR refusing to update internal communications with the individual’s preferred pronouns.
This change means employees now have more recourse if they feel they’ve been discriminated against or treated differently due to either of these three attributes.
These attributes were already protected attributes under the Sex Discrimination Act 1984 (Cth), therefore including them in the Fair Work (FW) Act brings the FW Act into alignment with the Sex Discrimination Act.
Prior to these amendments to the FW Act, employees who experienced adverse action due to breastfeeding, their intersex status or their gender identity were only able to make a complaint to the Australian Human Rights Commission (AHRC) (although breastfeeding status may have been associated with sex discrimination or carer responsibilities under the FW Act).
If their complaint was not resolved at the AHRC, they could commence proceedings in the Federal Circuit and Family Court of Australia or Federal Court of Australia.
Now, these employees will also be able to make a complaint to the Fair Work Commission (FWC) for a contravention of the general protection provisions of the FW Act.
In short, the changes are “merely adding protected attributes to an existing regime that employers are familiar with [the FW Act].
These three factors will now join a list of other protected attributes under the Fair Work Act, including sex, race, age, disability and religious beliefs.
How will this work?
Employees who believe they have been unlawfully discriminated against are eligible to request assistance from the Fair Work Ombudsman (FWO). An investigation will likely take place to determine if the employee’s complaint amounts to unlawful action, in which case employers could face litigation for contravening the FW Act.
Employees who claim discriminatory behaviours resulted in their termination could also be eligible to lodge an application for unfair dismissal with the FWC.
If an employee’s employment has not been terminated, but they allege there has been a contravention of the discrimination protection provisions of the FW Act (for example because of a demotion, transfer or other adverse action that has been taken against them), they may make an application to the Federal Court of Australia or Federal Circuit and Family Court of Australia to seek remedies including injunctive relief (e.g. to stop the transfer or demotion), reinstatement, backpay, compensation and other orders.
Fines for these matters are by no means chump change. A court can impose penalties for these contraventions of up to:
- A maximum of $16,500 per contravention for an individual
- A maximum of $82,500 per contravention for a company.
While employees could make applications under discrimination laws on these grounds before these amendments, the remedies available in the Federal Court of Australia or Federal Circuit and Family Court of Australia are now broader and more protective of the employee’s positions, rather than merely compensating for damage after it’s done without the ability to reinstate the employee or otherwise preserve their employment.
The existence of civil penalties under the FW Act, including penalties for those involved in the contravention, also achieves broader deterrence as there is more reluctance to fall foul of these provisions by employers and managers.
Exceptions to keep in mind
As with many legal changes, there are certain exceptions to keep in mind.
There are some defences that employers could reply upon if faced with a claim of a FW contravention.
The Sex Discrimination Act contains a number of exceptions which provide that is not unlawful to discriminate against a person on the grounds of their sex.
For example, it may not be unlawful to discriminate against an employee on the grounds of their sex if their role involves fitting members of the same sex into clothing (i.e. a female employee fitting a female customer for an undergarment), or if they are providing welfare services exclusively to people of the same sex.
She says it’s also important to factor in the inherent requirements of the role. For example, it could be considered discriminatory not to hire someone in a wheelchair if moving/running quickly isn’t an inherent part of their job (i.e. a firefighter or police officer).
What comes next?
Employers and HR professionals are well-advised to ensure their internal policies are up-to-date to include these new inclusions in the Fair Work Act.
It’s important that policies, induction and training programs for employees cover off on these attributes and that leaders are educated to ensure they don’t breach [these new rules]. But, more to the point, it’s important to ensure you’re doing this to foster healthy and inclusive workplaces.
Many employers already cover these attributes in their anti-discrimination policies, and so will be complying with these provisions already.
However, it’s important to note that now the consequences of breaching [these policies] could be more significant.
