All people working in Australia under the Fair Work system are entitled to general workplace protections. The Fair Work Act 2009 (FW Act) protects certain rights, including:
- workplace rights
- the right to engage in industrial activities
- the right to be free from unlawful discrimination
- the right to be free from undue influence or pressure in negotiating individual arrangements
Unlawful workplace discrimination under the general protections in the Fair Work Act 2009 occurs when an employer takes adverse action against an employee or prospective employee because of one or more of the following attributes:
- race
- colour
- sex
- sexual orientation
- age, physical or mental disability
- marital status
- family or carer’s responsibilities
- pregnancy and breastfeeding
- religion
- political opinion
- nationality
- social origin
This includes full-time, part-time and casual employees, probationary employees, apprentices and trainees, and individuals employed for fixed periods of time or tasks. It is also unlawful to refuse to hire a prospective employee based on one of the above attributes.
This was highlighted in a recent case (Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399 (4 May 2023), where a long-serving 68-year-old worker was awarded more than $200,000 (on appeal) for suffering a psychiatric injury from feeling pressured to retire. In February 2018, he was informed the company had a retirement age of 65 and was asked when he planned to retire. He told his manager it was unlawful discrimination and was subsequently informed his position was being offered to another worker. Although he had intended to work until 75, he felt pressured to provide a retirement date. He reluctantly agreed to retire in July 2019.
In July 2018, he was told his contract would be terminated at the end of the year and replaced with a fixed-term contract that required him to train his replacement. This action led to the worker being diagnosed with an adjustment disorder (depression and anxiety) which prevented him from working. He eventually submitted his resignation in August 2018.
What employers can do to avoid such a claim?
- Develop and implement a written policy defining what unlawful discrimination is and stating that unlawful discrimination is unacceptable.
- Require employees and managers to undergo training on discrimination.
- Create a culture of inclusiveness and mutual respect
- Ensure managers and supervisors lead by example.
- Ensure that any discrimination complaints are handled seriously and promptly
- If discrimination has occurred, ensure appropriate disciplinary action is taken.
For more information or training on this subject, MTA Members are encouraged to contact our Senior Workplace Relations Advisors via email: wr@mtasant.com.au or phone 8291 2000.