Workers are entitled to protection against discrimination in Queensland. This is an area of law which makes it unlawful for a person to treat another less favorably because of certain attributes such as race, sex, sexuality, and political and religious beliefs. Since 7 December 2022, the Albanese government’s Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 made amendments to the anti-discrimination protections in the Fair Work Act 2009 (“the Act”) section 351 has been amended to include “breastfeeding”, “gender identity”, and “intersex status”.
Pursuant to the explanatory memorandum, the purpose of these three new protections is to provide additional protections to the already existing anti-discrimination grounds in the Act and align it with other Commonwealth anti-discrimination legislation, such as the Sex Discrimination Act 1984.
Definitions
To maintain compliance, human resource professionals must understand the following legal meanings of these new attributes to update internal training and policies:-
- “Breastfeeding” – includes both the act of expressing milk and includes an act of breastfeeding, and breastfeeding over a period;
- “Gender identity” – refers to a person’s gender-related identity, appearance, mannerisms, or other gender-related features (whether by way of medical intervention or not), with or without respect to the person’s designated sex at birth; and
- “Intersex status” – means the status of having physical, hormonal or genetic characteristics that are neither entirely female nor entirely male; or a blend of female and male; or neither female nor male.
In Practice
These new attributes mean that an enforcement mechanism is now available for employees and prospective employees who claim they have been discriminated against based on these attributes. Aggrieved individuals may file an application to the Fair Work Commission and have the advantage of conciliation conference to resolve the matter. Existing avenues of anti-discrimination tribunals are also available. Potential circumstances where discrimination based on these attributes may include:-
- Employers unreasonably refusing to provide a clean quiet place for the employee or not allowing the employee to take short breaks at particular times during the day to express milk while at work.
- Workplaces which do not allow any changes to an employee’s personnel records may require a transgender person to continually disclose information about their gender identity, in order to explain discrepancies.
- Colleagues referring to an intersex co-worker in a discriminatory manner behind their back.
These new protections are often overshadowed by other amendments made to the Act such as Equal remuneration provisions, Prohibition on pay secrecy and Enterprise agreements. Human resource professionals must ensure that their internal anti-discrimination policies are updated to include the new protected attributes.
Policies should also provide explicit compliance requirements. They should be made available in writing and conveyed to all employees. Policies should clearly clarify the method for filing a complaint and state that policy violations will result in disciplinary action or dismissal consequently for breaching the policy.
If you are unsure about the new workplace anti-discrimination protections or have any employment law related questions which you would like to discuss, please contact our experienced employment law solicitors.
