Discrimination in the workplace

The general protections of the Fair Work Act prohibit the taking of adverse action against an employee, or prospective employee for a prohibited reason; see sec 351. Sec 342 of the Act defines “adverse action” inter alia as where an employer discriminates against the employee and other employees. Neither sec 351 nor 342 define “discrimination” What does it mean?

“Section 351 relevantly provides for protections in respect of discrimination:

(1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s … family or carer’s responsibilities ….

However, by the provisions of s.351(2), s.351(1) does not apply if the adverse action is taken because of the inherent requirements of the particular position concerned.

The Act does not define discrimination for the purposes of ss.342 or 351. Nevertheless, the term has attracted judicial attention. The relevant discrimination can be direct or indirect and is not limited to the definitions prescribed by anti-discrimination laws: Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056; Klein v Metropolitan Fire and Emergency Services Board [2012] FCA 1402; Hodkinson v The Commonwealth [2011] FMCA 171.”

Tahi v Oxican Pty LKtd (2018) FCCA 3722 delivered13 December 2018 per Jarrett J