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Discrimination occurs where someone treats another person less favourably because of some attribute they have like their age, race, an impairment or disability, sex, religion, sexual prefence or family responsibilities amongst other reasons when compared to someone who does not have that attribute in circumstances which are the same or not materially different.
For example: If you are a female worker working on a remote outdoor site and your employer does not provide female toilet facilities but does provide male toilet facilities.
Discrimination can be direct when the unfavourable treatment is directed at you or it can be indirect when the action being taken is to impose a term or condition with which a person with an attribute does not comply or is not able to comply and a person without the attribute does comply or is able to comply with the term and that situation is not reasonable.
For example: An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress.
Discrimination is defined in the following Acts of Parliament:
- Anti Discrimination Act 1991 (Qld)
- Age Discrimination Act 2004 (Cth)
- Disability Discrimination Act 1992 (Cth)
- Racial Discrimination Act 1975 (Cth)
- Sex Discrimination Act 1984 (Cth)
- Australian Human Rights Commission Act 1986 (Cth)
- Native Title Act 1993 (Cth)
In What Areas of Activity is Discrimination unlawful?
Discrimination is only unlawful if it occurs in certain areas of activity. In the workplace those areas include pre-work, at work, by principals against their agents, pre-entry into a proposed partnership, entry into an existing partnership, in an existing partnership, pre-membership to an industrial, professional, trade or business organisation, membership of an industrial, professional, trade or business organisation, pre-qualification with respect to the qualifying body, during qualification by the qualifying body and the employment agency area.
Exemptions
In the work and work related areas mentioned above where discrimination can be unlawful there are some circumstances where an employer will be exempted from any breach of legislation. Those include where the discrimination occurs for genuine occupational requirements, for residential domestic services, residential childcare services, working with children, single sex occupations, requiring a job to be filled by a married couple, determining a retiring age from a partnership, youth wages, special terms if a job capacity is restricted by an impairment, where provision of special facilities or services would impose unjustifiable hardship, where making allowances for a person with an impairment would impose unjustifiable hardship, an act reasonably necessary to protect public health and safety, compulsory retirment ages under Legislation, an act done to promote equal opportunity for people with an attribute if it is not inconsistent with anti discrimination legislation, an act done to protect the welfare of a group of people with an attribute if it is not inconsistent with anti discrimination legislation, an act that is pecifically authorised by an existing provision of another Act as at the date the Anti Discrimination Act 1991 came into force, competitive sporting activities, where a person is subject to a legal incapacity and where an act is reasonably necessary to protect the health and safety of people at work.
This means that even though an employer may be discriminating against someone the discrimination might be exempt and unable to be complained about.
Procedure
A discrimination complaint can be pursued in several different forums depending on the circumstances. In Queensland the Queensland Anti Discrimination Commission handles complaints of discrimination. At the Commonwealth level complaints can be made to the Australian Human Rights Commission.
Generally a complaint goes through an approval process first to determine whether on its face the complaint gives rise to some form of discrimination that the Commission can deal with. If the complaint is accepted then the Commission will arrange a conciliation where the parties meet with a Commissioner or their delegate to discuss the complaint confidentially and try and agree on an outcome. If the conciliation process is unsuccessful then the complaint will be referred for arbitration. In Queensland arbitration is conducted in the Queensland Anti Discrimination Tribunal (to become part of the Queensland Civil and Administrative Tribunal as at December 2009. At the Commonwealth level complaints are arbitrated in the Federal Court or Federal Magistrates Court.
What Can I achieve By Complaining?
Making a complaint is a big step but there are many reasons why you should take a stand. The remedies that can be obtained from a discrimination complaint include compensation as well as a change in your employment conditions, getting your job back if you were sacked, an apology and orders to make your employer provide training or introduce policies and procedures to ensure discrimination is eliminated from your workplace. You can make a difference!
What will it Cost Me?
Workers First offers competitive pricing including fixed fees in some circumstances and staged costing so you only pay for the level of service you need. Workers First can also conduct discrimination complaints via an hourly fee however where other firms will charge you in 6 minute units meaning if they spend only 1 minute on a task you pay for 6 minutes, at Workers First we charge in 1 minute units which means you only pay for the actual time spent on your case. We believe in honesty in billing and making sure that our clients only pay for what they need to secure a successful outcome. No win no fee arangements can be offered subject to certain conditions.
How do I make a complaint?
Contact Workers First as soon as possible to arrange a confidential assessment interview by eMail to mail@WorkersFirst.com.au or on our toll free number 1300 991 791.
Please send us your inquiry and we'll call you.
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